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5 


THE    LAW 


xn^ 


OF 


REAL  PROPERTY 


AND 


OTHER  INTERESTS  IN   LAND 


BY 


HERBERT  THORNDIKE  TIFFANY 


IN  TWO  VOLS. 

VOL.  n. 


SAINT  PAUL 

KEEFE-DAVIDSON  COMPANY 

1903 


5 


Copyright,  1'503. 

by 

Heebhht  Thorndike  Tib^awt. 


V' 


TABLE  OF  CONTENTS 

VOLUME  I. 


PART  I. 

PRELIMINARY    CONSIDERATIONS. 


CHAPTER  I. 

THE   NATURE  OF  REAL  PROPERTY. 
(See  volume  1,  p.  vii.) 


CHAPTER  II. 

TENURE  AND   SEISIN. 
(See  volume  1,  p.  vii.) 


CHAPTER  III. 

ESTATES. 
(See  volume  1,  p.  viii.) 


PART  II. 

THE  OWNERSHIP  OF  LAND. 


CHAPTER  IV. 

THE   QUANTUM   OF   ESTATES. 
(See  volume  1,  p.  viii.) 


CHAPTER  V. 

EQUITABLE    OWNERSHIP. 
(See  volume  1,  p.  xi.) 


CHAPTER  VI. 

FUTURE    ESTATES   AND    INTERESTS. 
(See  volume  1,  p.  xii.) 


G6V687 


TABLE  OF  CONTENTS. 

CHAPTER  VII. 

CONCURRENT  OWNERSHIP. 
(See  volume  1,  p.  xiv.) 


CHAPTER  VIII. 

ESTATES  AND  INTERESTS  ARISING  FROM  MARRIAGE. 
(See  volume  1,  p.  xv.) 


CHAPTER  IX. 

RIGHTS  OF  ENJOYMENT  INCIDENT  TO  OWNERSHIP. 
(See  volume  1,  p.  xvii.) 


PART  111. 

RIGHT  TO   DISPOSE  OF  LAND  NOT  BASED 
ON  OWNERSHIP. 


CHAPTER  X. 

POWERS. 
(See  volume  1,  p.  xix.) 


PART  IV. 

RIGHTS  AS  TO  THE  USE  OR  PROFITS  OF 

ANOTHER'S  LAND. 


CHAPTER  XI. 

NATURAL  RIGHTS. 
(See  volume  1,  p.  xx.) 


CHAPTER  XII. 

EASEMENTS. 
(See  volume  1,  p.  xx.) 


TABLE   OF  CONTENTS. 

CHAPTER   XIII. 

PROP^ITS  A  PRENDRE. 
(See  volume  1,  p.  xxi.) 


CHAPTER  XIV. 

COVENANTS  RUNNING  WITH  THE  LAND. 

(See  volume  1,  p.  xxii.) 


CHAPTER  XV. 

RESTRICTIONS  ENFORCEABLE  IN  EQUITY. 
(See  volume  1,  p.  xxii.) 


CHAPTER  XVI. 

RENTS. 
(See  volume  1,  p.  xxii.) 


CHAPTER  XVII. 

PUBLIC  RIGHTS. 
(See  volume  1,  p.  xxiii.) 


VOLUIV^E  II. 
PART  V. 

THE  TRANSFER  OF  RIGHTS  IN  LAND. 

CHAPTER  XVIII. 
TRANSFER  BY  THE  GOVERNMENT. 

§  370.     The  nature  of  the  government  title 829 

371.     Grants  by  the  United  States ■ 832 

Public  sales  833 

ii 


vi  TABLE  OF  CONTENTS. 

§  371— Continued. 

Pre-emption   833 

Homestead  entry    834 

Railroad  grants   834 

Grants  to  states 835 

Townsites  836 

Mineral  lands 836 

372.  Grants  by  the  states 838 

373.  Spanish  and  Mexican  grants 841 

374.  Patents 842 


CHAPTER  XIX. 

VOLUNTARY  TRANSFER  INTER  VIVOS. 

I,     Classes  of  Conveyances. 

§  375.     Conveyances  at  common  law 847 

Feoffment   847 

Fines  and  recoveries 849 

Grant  849 

Lease  850 

Release    850 

Surrender  852 

Assignment    857 

Exchange    857 

376.  Conveyances  operating  under  the  Statute  of  Uses.  .858 

377.  Conveyances  employed  in  the  United  States 859 

Quitclaim  deeds  861 

378.  Conveyances  failing  to  take  effect  in  the  manner  in- 

tended     862 

IL     FoKM  AND  Essentials  of  a  Conveyance. 

§  379.     General   considerations 863 

380.  Designation  of  the  parties 865 

Name  of  grantee  left  blank 867 

381.  "Words  of  conveyance 869 

382.  The  habendum 870 

383.  Exceptions  and  reservations 872 

384.  Consideration   876 

385.  Reality  of  consent 878 

386      Effect  of  alterations 880 

III.     Description  of  the  Land. 

§  387.     General  considerations  881 

388.     Descripiion  by  government  survey 884 


TABLE  OF  CONTENTS.  vii 

389.  Reference  to  plat 885 

390.  Monuments,  courses,  and  distances 886 

391.  Boundaries  on  water 890 

392.  Boundaries  on  ways 893 

393.  Appurtenances  897 

IV.  Covenants  for  Title. 

§  394.  General  considerations 899 

395.  Covenant  for  seisin 901 

396.  Covenant  for  right  to  convey 903 

397.  Covenant  against   incumbrances 904 

398.  Covenants  for  quiet  enjoyment  and  of  warranty. .  .908 

399.  Covenant  for  further  assurance 911 

400.  The  measure  of  damages 912 

401.  Covenants  running  with  the  land 914 

V.  Execution  of  the  Conveyance. 

§  402.  Signing  918 

403.  Sealing  920 

404.  Witnesses 923 

405.  Acknowledgment   924 

By  married  woman 925 

Conclusiveness  of  certificate 925 

Proof  in  place  of  acknowledgment 927 

406.  Delivery  927 

In  escrow  931 

Effect  of  delivery 934 

407.  Acceptance    935 

408.  Execution  by  agent 937 


CHAPTER  XX. 

TRANSFER  BY  WILL. 

409.  General  considerations 941 

410.  Signing  by  testator 944 

411.  Acknowledgment  and  publication 946 

412.  Competency  of  witnesses 947 

413.  Attestation   and   subscription 950 

414.  Holographic  and  nuncupative  wills 951 

it5.  Undue  influence 952 

416.  Lapsed  and  void  devises 953 

Effect  of  residuary  clause 955 

417.  The  revocation  of  a  will 956 

Cancellation  or  destruction  of  instrument 957 

Dependent  relative  revocation 959 

Subsequent  will   960 

Marriage  or  birth  of  issue 962 


viii  TABLE  OF  CONTENTS. 

§  417— Continued. 

Alienation  of  land 964 

418.  Children  or  issue  omitted  from  will 966 

419.  Revival  of  will 967 

420.  Republication  969 


CHAPTER  XXI. 

DEDICATION. 

421.  The  nature  of  dedication 971 

422.  Mode  of  dedication 973 

423.  Acceptance 976 

424.  Effect  of  dedication 978 


CHAPTER  XXII. 

INTESTATE   SUCCESSION. 

425.  General  considerations   982 

426.  Descent  to  issue 984 

427.  Surviving  consort  as  heir 984 

428.  Parent  as  heir 986 

429.  Descent  to  collateral  kindred 986 

430.  Kindred  of  the  half  blood 987 

431.  Representation 988 

432.  Ancestral  lands   990 

433.  Illegitimate  children   .• 990 

434.  Unborn  children    991 

435.  Advancements    992 


CHAPTER  XXIII. 

ADVERSE  POSSESSION  OF  LAND. 

436.  General  considerations   996 

437.  Duration  and  continuity  of  possession 998 

438.  Tacking    1000 

439.  Personal   disabilities    1003 

440.  Exception  in  favor  of  the  sovereign 1005 

441.  Actual  and  visible  possession 1006 

442.  Exclusiveness  of  possession 1008 

443.  Hostile  character  of  possession 1009 

Mistake  in  locating  boundary 1013 

444.  Extent  of  possession 1015 


TABLE  OF  CONTENTS.  ix 

CHAPTER  XXIV. 

PRESCRIPTION   FOR   INCORPOREAL   THINGS. 

§  445.  General  considerations   1020 

446.  Tacking   1022 

447.  Personal   disabilities    1022 

448.  Continuity  of  user 1023 

449.  Exclusiveness  of  user 1025 

450.  Hostile  character  of  user 1025 

451.  Specific  rights  1028 

452.  Rights  in  the  public 1032 


CHAPTER  XXV. 

ACCRETION. 

453.  General  considerations   1034 

454.  Apportionment  of  accretions 1037 

455.  Islands  1038 


CHAPTER  XXVI. 
ESTOPPEL. 

456.  Transfer  of  after-acquired  title 1040 

457.  Estoppel  by  representation 1045 


CHAPTER  XXVII. 

FORFEITURE  AND  ESCHEAT. 

§  458.     Escheat    1049 

459.     Forfeiture    1050 

To  state   1050 

To  individual 1052 


X  TABLE   OF   CONTENTS. 

CHAPTER  XXVIII. 

TRANSFER  UNDER  JUDICIAL  PROCESS  OR  DECREE. 

§  460.     Sales  and  transfers  under  execution 1053 

461.  Sales  In  equity  at  the  instance  of  creditors 1057 

462.  Sales  of  decedents'  lands 1057 

463.  Sales  of  lands  of  infants  and  insane  persons 1060 

464.  Sales  and  transfers  for  purpose  of  partition 1060 

465.  Equitable  decrees  transferring  title 1061 

466.  Adjudications  of  bankruptcy 1062 


CHAPTER  XXIX. 

TRANSFER  FOR  NONPAYMENT  OF  TAXES. 

467.  Character  of  title  acquired 1063 

468.  Judgment  for  taxes 1066 

469.  Forfeiture  to  state 1066 

470.  Remedial  legislation    1067 


CHAPTER  XXX. 

APPROPRIATION  UNDER  EMINENT  DOMAIN. 

471.  The  power  to  appropriate ' 1068 

472.  Rights  subject  to  appropriation 1069 

473.  The  mode  of  appropriation 1071 

474.  Time  of  passing  of  title 1074 


CHAPTER  XXXI. 

NOTICE,  PRIORITY,  AND  RECORDING. 

475.  The  equitable  doctrines 1075 

476.  The  recording  acts 1077 

477.  Sufficiency  of  record 1081 

478.  Persons  affected  with  notice  by  record 1083 

479.  Notice  as  substitute  for  recording 1084 

480.  Notice  from  possession 1088 

481.  Notice  from  statements  in  instruments  of  title 1090 


TABLE  OF  CONTENTS.  xi 

482.  Purchasers  under  particular  classes  of  conveyances 1091 

483.  Purchasers  for  value 1093 

484.  Purchasers  with  notice  from  purchasers  without  notice.  .1095 

485.  I*urchasers  without  notice  from  purchasers  with  notice.  .1095 

486.  Purchasers  at  execution  sales 1097 

487.  Lis  pendens    1098 


CHAPTER  XXXII. 

REGISTRATION  OP  TITLE. 

§  488.  The  purpose  of  the  legislation 1101 

489.  The  method  of  registration 1102 

490.  Transfers  after  registration 1104 

491.  Equitable  interests  llo5 

492.  Liens  1105 

493.  Transfer  of  decedent's  land 1106 


CHAPTER  XXXIII. 
RESTRICTIONS  UPON  THE  FREEDOM  OF  TRANSFER. 

494.  General  considerations   1108 

495.  Conveyances  in  fraud  of  creditors 1109 

496.  Conveyances  in  fraud  of  subsequent  purchasers 1114 

497.  Conveyances  in  violation  of  the  bankrupt  act 1117 

498.  Transfers  by  disseisees 1118 

499.  The  homestead  exemption 1121 

Persons  entitled  to  the  right 1122 

Land  in  which  the  right  exists 1124 

Character  of  the  claimant's  interest  in  the  land 1127 

Debts  to  which  the  exemption  extends 1128 

Claim  and  selection 1131 

Transfer  of  the  homestead  property 1131 

Loss  of  rights  by  abandonment 1134 

Waiver  of  rights 1134 

Federal    homestead    exemption 1135 

500.  Restriction  in  creation  of  estate 1135 

Estates  in  fee  simple 1135 

Estates  in  fee  tail 1139 

Estates  for  life 1140 

Estates   for   years 1142 


xii  TABLE   OF   CONTENTS. 

CHAPTER  XXXIV. 
PERSONAL  DISABILITIES  AS  TO  THE  TRANSFER  OF  LAND. 

§  501.    Married  women 1144 

Conveyances  between  husband  and  wife 1145 

Transfer  by  will 1147 

502.  Infants  1147 

Transfer  by  will 1152 

503.  Persons  mentally  incapacitated 1152 

Testamentary  capacity 1156 

504.  Corporations 1156 

505.  Aliens  1158 

505a.  Criminals 1161 


PART  VI. 

LIENS. 


CHAPTER  XXXV. 

MORTGAGES, 

The  NATtTRE  and  Essentials  of  a  Mortgage. 

506.  Historical    development    1165 

507.  Legal  and  equitable  theories 1167 

508.  The  right  of  redemption 1170 

509.  Interests  subject  to  mortgage 1170 

Future  acquisitions 1172 

510.  The  ordinary  form  of  a  mortgage 1175 

511.  Separate  defeasance  11 77 

512.  Conveyance  absolute  in  form 1178 

Sale  with  right  of  repurchase 1181 

513.  The  obligation  secured 1183 

Description  of  obligation 1184 

Future  advances    1185 

Mortgage  to  indemnify  surety 1188 

Change   in  amount  or  evidence   of  obligation 1188 

Personal  liability  of  mortgagor 1189 

Mortgage  to  secure  support 1189 

514.  Illegality  of  purpose  of  mortgage 1190 

515.  Agreements  for  collateral  advantage 1192 


TABLE   OF  CONTENTS.  xiii 

II.  Rights  and  Liabilities  Incident  to  the  Mortgage  Relation. 

§  516.  The  nature  of  the  mortgagor's  interest 1194 

517.  The  nature  of  the  mortgagee's  interest 1196 

518.  The  relation  not  fiduciary 1198 

519.  The  right  to  possession  of  the  land 1199 

520.  Rents  and  profits 1201 

Mortgagor  in  possession 1201 

Mortgagee  in  possession ' 1202 

Annual  rests  1203 

521.  Effect  of  a  lease  of  the  land 1204 

522.  Expenditures  by  mortgagee 1205 

523.  Insurance 1207 

524.  Injuries  to  the  land 1211 

Remedies  of  the  mortgagee 1211 

Remedies  of  the  mortgagor 1213 

III.  The  Transfer  of  Mortgaged  Land. 

§  525.     General  considerations   1214 

Transfer  to  mortgagee 1215 

526.  Personal  liability  of  the  transferee 1216 

527.  Mortgagor  becoming  surety 1218 

528.  Enforcement  of  personal  liability  by  transferee. .  .1219 

529.  The  transferee's  right  to  question  mortgage 1221 

530.  Transfer  of  part  of  land 1221 

IV.  The  Transfer  of  a  Mortgage. 

§  531.  Express  transfer  of  mortgage 1225 

532.  Transfer  of  mortgage  debt 1226 

533.  Transfer  of  part  of  debt 1227 

534.  Transfer  of  mortgage  without  debt 1229 

535.  Freedom  of  transfer  from  equities 1230 

536.  Record  and  notice 1232 

V.  Payment,  Redemption,  and  Discharge. 

§  537.  Payment  or  tender  before  default 1235 

538.  Payment  or  tender  after  default 1236 

539.  Formal  discharge  or  satisfaction 1238 

540.  Enforcement  of  right  of  redemption 1239 

Bar  by  lapse  of  time 1240 

541.  Persons  entitled  to  redeem 1241 

542.  Amount  necessary  for  redemption 1242 

543.  Tacking  and  consolidation 1242 

Tacking  unsecured  claims 1244 

544.  Exoneration  and  contribution 1245 

545.  Subrogation  of  person  redeeming 1246 


xiv  TABLE   OF  CONTENTS. 

546.  Marshaling  of  securities 1249 

547.  Merger  of  mortgage 1250 

VI.     Foreclosure. 

§  548.     Accrual  of  the  right  to  foreclose 1253 

549.  Bar  by  lapse  of  time 1254 

Bar  of  obligation  secured 1256 

550.  Strict  foreclosure  in  equity 1257 

551.  Foreclosure  by  entry 1258 

552.  Foreclosure  by  writ  of  entry 1259 

553.  Equitable  proceeding  for  sale 1260 

554.  Parties  to  proceeding 1262 

555.  Power  of  sale 1267 

Mode  of  procedure 1271 

Sale  under  deed  of  trust 1273 

556.  Scire    facias 1275 

557.  Stipulation   for  attorney's  fees 1275 

558.  Enforcement  of  personal  liability 1276 


CHAPTER  XXXVI. 

EQUITABLE  LIENS. 

§  559.     General  considerations    1278 

560.  Express  charges  on  land 1279 

561.  Agreements  for  security   (equitable  mortgages) 1282 

By  deposit  of  title  deeds 1284 

562.  Lien  for  improvements 1286 

563.  Lien  for  owelty  of  partition 1287 

564.  Implied  lien  of  grantor  (vendor's  lien) 1287 

Persons  affected  by  the  lien 1289 

Transfer  of  the  lien 1290 

Waiver    1291 

565.  Express   lien   of   grantor 1292 

566.  Vendor's  lien  before  conveyance 1293 

567.  Vendee's  lien   1294 


CHAPTER  XXXVII. 

STATUTORY  LIENS. 
568.     General  considerations    1296 


TABLE   OF   CONTENTS.  XV 

569.  Mechanics'  liens 1297 

Persons  entitled  to  lien 1297 

Contract  or  consent  of  owner 1300 

Priorities    l^^l 

Assertion  and  enforcement  of  lien > 1303 

Release  or  waiver  of  lien 1304 

570.  Judgment  liens   1304 

Character  of  the  judgment 1306 

Lands  and  interests  therein  subject  to  the  lien 1308 

Priorities    ■ l^H 

571.  Attachment  liens   1314 

572.  Execution  liens  1318 

573.  Liens  for  taxes  and  assessments 1319 

574.  The  lien  of  decedent's  debts 1321 

575.  Liens   on   crops 1322 

576.  The  statutory  lien  for  improvements 1323 

577.  Widow's  allowance  1323 


PART  V. 
THE  TRANSFER  OF  RIGHTS  IN  LAND. 


CHAPTER  XVIII. 

TRANSFER  BY  THE  GOVERNMENT. 

§  370.  The  nature  of  the  government  title. 

371.  Grants  by  the  United  States. 

372.  Grants  by  the  states. 

373.  Spanish  and  Mexican  grants. 

374.  Patents. 

The  title  to  all  lands  belonging  to  individual  owners  was 
originally  acquired  from  the  federal  or  a  state  government,  or 
from  a  foreign  government  formerly  owning  some  part  of  the 
present  territory  included  in  the  United  States. 

The  public  lands  of  the  United  States  have  been  disposed 
of  by  the  federal  government  in  various  modes,  including  pub- 
lic sale,  sale  to  settlers  on  the  land  under  the  "pre-emption" 
law,  gifts  to  settlers  under  the  "homestead"  law,  grants  to  aid 
in  the  construction  of  railroads,  and  grants  to  states  to  aid  in 
education  and  internal  improvements.  Mineral  lands  have  been 
granted,  under  a  separate  system,  to  persons  working  them. 

A  grant  by  the  government  may  be  a  legislative  act,  tak- 
ing effect  immediately;  but  otherwise  a  patent  is  necessary 
to  vest  the  legal  title  to  government  land  in  an  individual. 
A  patent  which  is  valid  on  its  face  is  conclusive  in  a  court  of 
law,  but  may,  in  equity,  be  shown  to  have  been  procured  or 
issued  by  fraud  or  mistake. 

§  370.     The  nature  of  the  government  title. 

All  the  land  in  the  United  States,  now  owned  by  individ- 

(829) 


§   370  REAL    PROPERTY.  [Ch.  18 

uals,  formerly  belonged  either  to  the  federal  government,  to 
an  individual  state,  or  to  a  foreign  nationality,  which  dis- 
posed of  it  to  an  individual  proprietor  before  that  particular 
territory  became  a  part  of  this  country.  These  grants  of  land 
by  foreign  states  to  individuals,  made  before  the  incorpora- 
tion of  that  particular  territory  in  the  United  States,  are 
the  chief  basis  of  titles  in  some  parts  of  the  country,  and  it 
seems  proper  to  briefly  sketch  the  history  of  the  various  acqui- 
sitions of  territory  by  this  nation,  in  order  better  to  under- 
stand the  various  classes  of  government  grants  on  which  the 
existing  proprietary  rights  of  individuals  may  be  based. 

The  British  claim  of  dominion  over  the  territory  included 
within  the  original  thirteen  colonies  was  based  upon  discov- 
ery, consummated  by  possession,  the  wandering  Indian  tribes 
being  regarded  as  having  a  mere  right  of  occupancy.^  The 
dominion  and  ownership  thus  acquired  was,  in  some  of  the 
colonies,  granted  by  the  British  crown  to  individual  pro- 
prietors or  proprietary  companies,  by  whom  parts  of  the 
land  were  in  turn  granted  to  individuals.  In  others  of  the 
colonies  the  title  to  the  soil  remained  in  the  British  crown, 
and  grants  were  made  to  individuals  by  the  governor  of  the 
colony  in  the  name  of  the  king.  After  the  Revolution,  the 
title  of  the  crown  to  lands  still  undisposed  of  passed  to  the 
states,  and  lands  belonging  to  the  original  proprietaries  were 
in  some  cases  confiscated.  Thus  it  may  be  said  that  the  title 
to  all  land  within  the  original  thirteen  states  is  derived,  di- 
rectly or  indirectly,  from  the  British  cro^vn,  with  the  excep- 
tion only  of  considerable  bodies  of  land  in  the  state  of  New 
York,  the  title  to  which  is  based  on  grants  by  the  Dutch  gov- 
ernment or  its  representatives,  which  grants,  however,  were 
recognized  and  confirmed  by  the  British  crown  upon  the  con- 
quest of  that  territory. 

The  territory  west  of  the  Allegheny  mountains  and  east  of 

1  Johnson's  Lessee  v.  Mcintosh,  8  Wheat.  (U.  S.)  543. 
(830) 


Ch.    18]  TRANSFERS  BY  GOVERNMENT.  ^   370 

the  Mississippi  river,  wliieli  had  been  claimed  by  the  French, 
came,  as  a  result  of  the  French  and  Indian  war,  and  of  the 
treaty  of  Paris  in  1703,  nnder  the  exclusive  dominion  of 
England.  The  lands  within  this  territory  were,  by  royal 
proclamation,  set  ajDart  as  "crowm  lands."  After  the  sepa- 
ration of  the  colonies  from  England,  a  number  of  the  col- 
onies asserted  claims  to  parts  of  these  crown  lands,  as  being 
included  within  their  limits  under  their  roj'al  charters. 
These  claims,  so  far  as  concerned  what  was  known  as  the 
''j^orthwest  Territory" — that  is,  the  territory  northwest  of 
the  Ohio  river — were  opposed  by  the  other  colonies  in  the 
negotiations  leading  up  to  the  Articles  of  Confederation,  and 
finally  the  colonies  asserting  such  claims  ceded  practically  all 
their  lands,  or  their  claims  thereto,  within  the  limits  of  such 
territory,  to  the  confederation.  Of  the  territory  south  of 
the  Ohio  river,  the  state  of  Kentucky  was  formed  out  of  that 
part  of  Virginia  west  of  the  Allegheny  mountains,  w^hile  the 
balance  of  this  territory,  so  far  south  as  the  Spanish  terri- 
tory of  Florida,  was  ceded  to  congress  by  the  respective 
states  claiming  it. 

In  1803,  the  United  States  purchased  from  France  the 
"Louisiana"  territory,  which  was  bounded  on  the  east  by 
the  Mississippi  river,  and  on  the  west  by  a  line  which  ran, 
approximately,  along  the  present  eastern  boundary  of  Idaho, 
and  through  the  center  of  what  are  now  Colorado  and  New 
Mexico.  This  territory  extended  north  to  Canada,  and 
south  to  the  Arkansas  river  and  the  present  northern  bound- 
ary of  Texas.  In  1819,  the  "Florida"  purchase  w^as  made 
from  Spain,  this  including  the  present  Florida  and  parts  of 
Mississippi,  Alabama,  and  Georgia.  In  1845,  Texas,  w^hich 
had  obtained  independence  from  Mexico  in  1836,  was  an- 
nexed to  the  United  States.  In  1848,  as  a  result  of  the  war 
with  Mexico,  that  nation  ceded  to  the  United  States  terri- 
tory included,  approximately,  within  the  present  limits  of 

(831) 


§  371  REAL    PROPERTY.  [Ch.     18 

California,  Nevada,  Utah,  Arizona,  and  within  parts  of  Colo- 
rado and  ISTew  Mexico,  it  extending  in  effect  from  the  Pacific 
ocean  to  the  western  limit  of  the  Louisiana  purchase;  and 
subsequently,  in  1853,  a  comparatively  small  portion  of  ter- 
ritory, adjoining  the  present  Mexican  boundary,  was  pur- 
chased from  Mexico,  in  order  to  settle  a  question  as  to  the 
limits  of  the  cession  of  1848,  this  being  known  as  the  "Gads- 
den Purchase."  In  1846,  by  treaty  with  Great  Britain,  the 
territory  comprising  that  now  occupied  by  Washington,  Ore- 
gon, and  Idaho,  which  had  been  in  dispute  between  the  two 
countries  for  many  years,  was  ceded  by  Great  Britain,  this 
country  ceding  in  return  all  claim  to  the  territory  to  the 
north  thereof.  In  1867  the  present  territory  of  Alaska  was 
purchased  from  Russia. 

While  by  far  the  greater  part  of  the  lands  of  which  either 
the  United  States  government  or  individual  states  have  had 
the  ownership  and  control  has  been  acquired  either  from  a 
foreign  state  or  by  cession  from  the  general  government  to 
a  state,  or  vice  versa,  land  may  be  acquired  from  individual 
owners,  by  either  the  United  States  or  an  individual  state,  by 
forfeiture,  escheat,  the  exercise  of  the  power  of  eminent  do- 
main, or  voluntary  transfer. 

§  371.     Grants  by  the  United  States. 

The  territory  ceded  to  the  confederation  by  individual 
states,  and  that  acquired  by  the  present  government  from 
foreign  powers,  was,  for  the  most  part,  iree  from  any  claims 
of  ownership  by  individuals,  and  was  therefore  open  to  dis- 
position by  the  government  in  such  a  way  as  seemed  ex- 
pedient. The  land  thus  owned  and  controlled  by  the  gov- 
ernment, known  as  "public  land,"  has  been  gradually  dis- 
posed of  to  individuals  and  corporations  by  various  methods, 
intended,  and  usually  adapted,  to  aid  in  the  settlement  and 
(832) 


Ch_  18]  TRANSFERS  BY  GOVERNMENT.  §   371 

industrial  development  of  the  country.  The  more  important 
methods  of  disposition  which  have  been  adopted  v^^ill  be 
briefly  described. 

Public  sales. 


In  the  early  period  of  the  land  system  it  was  the  cnstom 
to  offer  lands,  as  soon  as  surveyed,  at  public  sale,  in  accord- 
ance with  a  proclamation  by  the  president,  and  at  a  mini- 
mum price.-  This  system  of  disposing  of  public  lands  gave 
room  for  much  abuse  and  oppression,  it  often  occurring  that 
the  land  had  been  improved  by  actual  settlers,  who  would 
be  dispossessed  by  purchasers  at  these  sales,  and  it  gradu- 
ally fell  into  disuse.  It  is  now  to  some  extent  abolished  by 
statute.^  The  amount  of  land  held  under  title  thus  acquired 
from  the  government  is  not  large. 

Pre-emption. 


In  consequence  of  the  evils  resulting  from  the  system  of 
public  sales,  the  "pre-emption"  system  was  instituted,  by 
which  one  who  settled  on  one  hundred  and  sixty  acres  of 
land,  improving  it  and  erecting  a  dwelling  thereon,  was  en- 
titled to  purchase  the  land  in  preference  to  any  other  per- 
son. After  settling  on  the  land,  he  was  required  to  file  a 
statement  or  "entry"  in  the  land  oflSce  within  a  certain  time, 
declaring  his  purpose  to  claim  the  right  of  pre-emption,  and 
also  to  file  proof  that  he  was  entitled  to  the  right,  and  to 
pay  the  sum  fixed  by  law  as  the  purchase  price.  He  then 
received  a  certificate  of  entry.^  Before  making  such  proof 
and  payment,  the  claimant  was  regarded  as  having  merely 
a  privilege  to  purchase  the  land,  of  which  he  might  be  de- 

2  See  Rev.  St.  U.  S.  §§  2353,  2357-2360. 

•:See  26  U.  S.  Stat.  1099,  §§  9,  10;  1  Dembitz,  Land  Titles,  p.  620. 
note. 

4  Rev.  St.  U.  S.  §§  2257-2288. 

(833) 
Real  Prop.— 53. 


§   371  REAL    PROPERTY.  [Ch.    18 

prived  by  the  government  by  a  grant  or  sale  to  others.^  And 
such  privilege  or  right  of  pre-emption  could  not,  by  the  ex- 
press provision  of  the  statute,  be  assig-ned  to  another  person, 
though  the  pre-em23tor  could  transfer  his  interest  after  pay- 
ment and  issue  of  the  certificate.^  The  pre-emption  law 
has  now  been  repealed.^ 

Homestead  entry. 


Since  the  repeal  of  the  laws  allowing  public  sales  and  of 
the  pre-emption  law,  the  only  system  of  general  application 
for  the  acquisition  of  public  lands  is  under  the  "homestead" 
law.  By  this  law,  any  citizen,  or  intending  citizen,  who  is 
an  adult  or  head  of  a  family,  who  does  not  own  one  hundred 
and  sixty  acres  of  land  in  any  state  or  territory,  and  who 
has  not  previously  exercised  the  homestead  right,  may  make 
application  for  the  benefit  of  the  law,  and  this,  if  followed 
by  bona  fide  occupation  and  cultivation  of  the  land  for  five 
years,  entitles  him  to  a  certificate  and  patent  for  the  land, 
without  making  any  payment  other  than  the  land-office  fees.^ 

Railroad  grants. 


Great  quantities  of  land  have  been  granted  out  of  the 
public  domain  of  the  United  States  to  aid  and  stimulate 
railroad  construction  through  the  territory  in  which  the  land 
lay.  These  grants  usually  consist  of  the  odd-numbered  sec- 
tions on  both  sides  of  the  railroad  to  a  certain  distance,  fre- 
quently five  miles,  and  the  even-numbered  sections,  thereby 
presumably  increased  in  value,  the  government  thereafter 
holds  at  an  increased  price.     In  many  cases  these  grants  to 

sFrisbie  v.  Whitney,  9  Wall.  (U.  S.)  187;  Yosemite  Valley  Case, 
15  Wall.    (U.  S.)    77. 

6  Rev.  St.  U.  S.  §  2263;  Myers  v.  Croft,  13  Wall.  (U.  S.)  291. 

7  Act  March  3,  1891  (26  Stat.  1097). 

8  Rev.  St.  U.  S.  §§  2289-2302. 

(834) 


Ch.    18]  TRANSFERS  BY  GOVERNMENT.  §   371 

aid  in  the  building  of  railroads  have  been  made  to  the  state 
in  which  the  railroad  was  to  be  built,  instead  of  to  the  cor- 
poration building  it.  In  such  cases  the  state  takes  merely 
the  legal  title,  in  trust  for  the  railroad.^ 

These  grants  to  the  railroads  are  subject  to  any  previous 
rights  which  may  have  been  acquired  by  others  in  the  lands 
granted,  under  the  pre-emption,  homestead,  or  other  laws. 
To  compensate  for  any  loss  to  the  railroad  corporation 
through  such  causes,  the  statute  making  the  grant  usually 
provides  for  "indemnity  lands"  at  a  greater  distance  from 
the  railroad,  these  being  lands  which  the  railroad  company 
is  authorized  to  take  in  lieu  of  those  in  its  original  gi'ant 
already  taken  wp  by  others.^*^  A  railroad  grant  almost  in- 
variably takes  effect  so  soon  as  the  survey  or  location  of  the 
proposed  railroad  through  the  public  land  has  been  approved 
by  the  land  office,  and  the  title  to  the  alternate  sections,  as 
named  in  the  act  constituting  the  grant,  then  vests  in  the 
railroad  company  as  of  the  date  of  the  grant.-^^ 

Grants  to  states. 


Congress  has,  at  various  times  and  for  divers  purposes, 
granted  parts  of  the  land  to  states.  Among  the  most  im- 
portant of  these  grants  are  those  for  educational  purposes. 
Usually,  section  sixteen  in  every  township,  and  sometimes 
also  section  thirty-two,   has   been   granted   to   the   state   or 

9  Rice  V.  Minnesota  &  N.  W.  R.  Co.,  1  Black  (U.  S.)  360;  Wolsey 
V.  Chapman,  101  U.  S.  755;  Schulenberg  v.  Harriman,  21  Wall.  (U. 
S.)   60. 

10  Leavenworth,  L.  &  G.  R.  Co.  v.  United  States,  92  U.  S.  733;  Bro- 
der  V.  Natoma  Water  &  Mining  Co.,  101  U.  S.  274;  Winona  &  St. 
P.  R.  Co.  V.  Barney,  113  U.  S.  618;  Sioux  City  &  Iowa  Falls  Town 
Lot  &  Land  Co.  v.  Griffey,  143  U.  S.  32. 

11  Van  Wyck  v.  Knevals,  106  U.  S.  360;  Sioux  City  &  Iowa  Falls 
Town  Lot  &  Land  Co.  v.  Griffey,  143  U.  S.  32;  Curtner  v.  United 
States,  149  U.  S.  672;  St.  Paul  &  S.  C.  R.  Co.  v.  Winona  &  St.  P.  R.  Co., 
112  U.  S.  720. 

(835) 


§371  REAL    PROPERTY.  [Ch.    18 

territory  for  the  support  of  schools;  besides  which,  grants 
have  been  made  for  state  universities,  agricultural  colleges, 
and  similar  purposes. 

To  each  state,  also,  in  which  there  were  then  public  lands, 
five  hundred  thousand  acres  were,  by  act  of  congress,  granted 
for  internal  improvements,  and  this  grant  extends  to  each 
new  state  as  it  is  admitted.^  ^ 

By  the  "swamp-land"  grant  of  1850,  all  swamp  and  over- 
flowed lands  unfit  for  cultivation  on  that  account  were  granted 
to  the  several  states  in  which  they  were  situated,  subject  to 
certain  restrictions,  for  the  purpose  of  aiding  in  the  reclama- 
tion of  such  lands.-^^ 

Townsites. 


The  statutes  of  the  United  States  specify  three  methods  by 
which  public  lands  may  be  acquired  for  townsites :  (1)  The 
president  may  reserve  land  for  townsite  purposes  on  harbors 
or  rivers,  or  at  other  possible  centers  of  population,  and  lots 
therein  may  be  sold  at  public  outcry.  (2)  Persons  desiring 
to  found  a  city  or  town  on  public  land  may  locate  a  townsite 
not  over  six  hundred  and  forty  acres  in  extent,  and  lay  off 
lots  therein,  and  the  president  may  then  authorize  the  sale 
of  such  lots  at  a  minimum  price  of  ten  dollars  per  lot.  (3) 
Public  land  which  has  actually  been  settled  upon  and  occu- 
pied as  a  toAvnsite  may  be  entered  in  the  land  ofiice  as  a 
townsite  by  the  municipal  authorities  thereof,  or  by  the 
county  judge.^^ 

Mineral  lands. 


Lands  belonging  to  the  United  States  which  contain  valu- 

12  Act  Sept.  8,  1841  (Rev.  St.  U.  S.  §  2378). 

13  Rev.  St.  U.  S.  §  2479. 

"Rev.  St.  U.  S.  §§  2380-2389;    2  Copp,  Pub.  Land  Laws   (1890) 
1010-1013. 

(836) 


Ch.  18]  TRANSFERS  BY  GOVERNMENT.  ^   371 

able  deposits  of  minerals  have  usually  beeu  excepted  from 
the  operation  of  general  laws  for  the  acquisition  of  land  by 
individuals,  such  as  the  pre-emption  and  homestead  laws. 
For  many  years,  mineral  lands  were  merely  leased  by  the 
government  for  the  purpose  of  working.  After  the  discov- 
eries of  precious  metals  in  the  western  territory,  the  mineral 
deposits  on  the  public  lands  were  worked  by  the  immigrants 
under  mining  regrilations  established  by  themselves,  and 
without  any  permission  from  the  government,  and  the  courts 
adopted  the  fiction  that  the  first  appropriator,  in  accordance 
with  the  local  mining  regulations,  had  a  license  from  the 
government  to  work  the  mines. -^^  It  was  not  until  1866  that 
congress  passed  an  act  providing  for  the  acquisition  of  min- 
eral lands  within  the  public  domain  by  individuals  at  nom- 
inal prices.  This  statute  adopted  the  essential  features  of 
the  local  miners'  regulations  in  regard  to  the  acquisition  or 
"location"  of  claims,  and  all  legislation  by  congress  on  the 
subject  has  recognized  the  validity  of  such  regulations,  as 
well  as  of  state  statutes,  when  not  in  conflict  with  the  acts 
of  congress.^,® 

The  statutes  on  the  subject  of  the  acquisition  of  claims 
make  a  distinction  between  mineral  deposits  in  "lodes"  or 
"veins,"  these  being  equivalent  terms,  and  "placer"  deposits. 
A  "lode"  or  "vein,"  as  the  terms  are  used  in  the  statute,  is 
a  "line  or  aggregation  of  metal  imbedded  in  quartz  or  other 
rock  in  place,"  while  the  term  "placer"  is  applied  to  ground 
which  "contains  mineral  in  its  earth,  sand,  or  gravel ;  ground 
that  includes  valuable  deposits  not  in  place, — that  is,  not  fixed 
in  rock, — but  which  are  in  a  loose  state,  and  may,  in  most 

15  Sparrow  v.  Strong,  3  Wall.  (U.  S.)  97;  Barringer  &  A.  Mines, 
196;  Wade,  Min.  Law,  §§  2,  3. 

ifi  The  United  States  statutes  on  the  subject  are  to  be  found  ia 
Rev.  St.  §§  2318-2352. 

(837) 


§   372  REAL    PROPERTY.  [Ch.    18 

cases,  be  collected  by  washing  or  amalgamation  without  mill- 


mg. 

Any  citizen  or  intending  citizen,  upon  discovering  a  vein 
or  lode  of  minerals  on  public  land,  may  "locate"  a  claim 
thereto  by  marking  the  limits  of  his  claim  on  the  ground, 
and  in  some  states,  by  local  requirements,  by  posting  notice 
of  the  claim,  and  recording  a  certificate  of  the  location.^  ^ 
The  extent  of  the  claim  is,  in  the  case  of  a  lode  or  vein, 
limited  by  the  United  States  statute  to  fifteen  hundred  feet 
in  the  direction  in  which  the  lode  or  vein  runs,  and  three 
hundred  feet  on  each  side  of  the  vein;  the  boundaries  run- 
ning in  the  direction  of  the  vein  being  known  as  "side"  lines, 
and  those  running  across  the  vein  as  "end"  lines.  The  lo- 
cator is  entitled  to  any  ore  within  the  space  marked  by  these 
surface  lines  extended  downward  vertically,  and  may  follow 
the  vein  across  his  side  lines,  even  though,  in  so  doing,  he 
takes  ore  from  beneath  the  surface  claim  of  another,  but 
he  cannot  follow  the  vein  across  his  end  lines. 

A  placer  claim  or  location  is  limited  to  one  hundred  and 
sixty  acres  in  case  the  location  is  made  by  an  association 
of  not  less  than  eight  bona  fide  locators,  and  to  twenty  acres 
in  the  case  of  a  location  by  an  individual. 

In  order  that  one  who  has  located  a  claim  may  continue  to 
hold  it,  he  must  do  work  or  make  improvements  thereon  to 
the  value  of  at  least  one  hundred  dollars  in  each  year,  and,  in 
case  of  his  failure  so  to  do,  the  claim  is  forfeited,  and  open 
to  location  by  another  person.^  ^ 

§  372.     Grants  by  the  states. 

Of  the  lands  within  the  original  thirteen  colonies,   the 

17  Mr.  Justice  Field  in  United  States  v.  Iron  Silver  Min.  Co.,  128 
U.  S.  673. 

isBarringer  &  A.  Mines,  c.  7. 

19  Rev.  St.  U.  S.  §  2324;  Barringer  &  A.  Mines,  c.  9. 

(838) 


Ch.  18]  TRANSFERS  BY  GOVERNMENT.  g   372 

larger  part  liad,  at  the  time  of  the  American  Revolution,  been 
granted  to  individuals  or  to  associations,  to  hold  in  private 
ownership,  and  their  rights,  except  in  so  far  as  the  lands  were 
confiscated  for  disloyalty,  were  not  affected  by  the  transfer 
of  the  sovereignty  to  the  state.  Those  lands,  however,  which 
had  not  been  granted  away  by  the  crown,  passed  to  the  re- 
spective state  governments  as  successors  to  the  crown,  and 
as  representatives  of  the  public.  Such  lands,  the  title  to 
which  was  thus  vested  in  any  of  the  original  states,  have  been 
disposed  of  either  by  special  legislative  grants,  or  in  accord- 
ance with  a  regular  statutory  system,  established  for  the  pur- 
pose, providing  for  their  survey  and  sale  to  persons  making 
formal  application  to  the  state  authorities. 

The  territory  ceded  by  certain  states  to  the  general  gov- 
ernment was,  to  some  extent,  incumbered  by  grants  previ- 
ously made  to  individuals  by  the  ceding  state,  and  these 
grants  were  usually,  by  the  agreement  for  cession,  recognized 
by  the  United  States.  Of  the  lands  of  which  the  title  thus 
became  vested  in  the  states,  the  most  important  were  those 
under  tidal  and  navigable  waters,  over  which  the  state  gov- 
ernments have  always  exercised  control,  and  which  they  have, 
as  a  general  rule,  not  granted  away  to  individuals ;  the  policy 
of  the  states,  however,  differing  among  themselves  in  this 
regard.^*^ 

Within  the  territory  ceded  to  the  United  States  by  foreign 
governments,  the  states  formed  therefrom  have  no  rights  to 
vacant  lands  except  as  these  may  have  been  granted  to  them 
by  the  United  States  government.  Such  grants  have,  how- 
ever, as  above  stated,  been  made  to  a  very  considerable  ex- 
tent, and  the  lands  so  granted  to  the  states  they  have  dis- 
posed of  to  individuals  and  corporations  in  various  ways. 

The  land  under  navigable  waters  within  the  limits  of  the 

20  Martin  v.  Waddell's  Lessee,  16  Pet.  (U.  S.)  367;  Shiveley  v. 
Bowlby,  152  U.  S.  1.    See  ante,  §  254. 

(839) 


§   372  REAL    PROPERTY.  [Ch.  18 

territory  ceded  to  the  United  States,  either  by  one  of  the 
states  or  by  a  foreign  country,  passed  to  the  United  States 
for  the  benefit  of  the  whole  people,  and  in  trust  for  the  sev- 
eral states  to  be  ultimately  created  out  of  such  territory,  and, 
upon  the  admission  of  any  part  of  such  territory  as  a  state, 
such  lands  pass  ipso  facto  to  the  state  government,  subject, 
however,  to  any  grants  of  rights  therein  which  may  have 
been  made  for  appropriate  purposes  by  the  United  States 
government  while  holding  the  country  as  a  territory.  Con- 
sequently, the  new  states  admitted  into  the  Union  since  the 
adoption  of  the  constitution  have  the  same  rights  as  the  orig- 
inal states  in  the  tide  waters,  and  in  the  lands  under  them, 
within  their  respective  jurisdictions,  and  they  may  accord- 
ingly grant  rights  therein  to  individuals,  as  it  may  seem  most 
expedient,  subject  only  to  the  paramount  rights  of  navigation 
and  commerce.^^ 

The  vacant  lands  which  belonged  to  the  state  of  Texas, 
lying  within  its  limits,  never  became  part  of  the  public  do- 
main of  the  United  States,  there  being  an  express  provision 
to  that  effect  in  the  resolutions  passed  by  congress  for  its 
admission  as  a  state.^^  These  lands  have  been  gradually 
disposed  of,  usually  by  locations  under  "land  certificates," 
these  certificates  having  been  issued  for  various  purposes,  as 
to  encourage  settlement,  to  reward  participants  in  the  War 
of  Independence,  or  their  heirs,  and  to  promote  the  con- 
struction of  railroads.^^ 

The  systems  and  regulations  adopted  bj^  the  various  states 
in  disposing  of  their  public  lands  have  been  of  the  most 
diverse  character.  Usually,  however,  a  warrant  is  issued, 
•either  to  one  entitled  as  a  beneficiary  by  some  legislative  act, 

21  Shiveley  v.  Bowlby,  152  U.  S.  1. 

22  5  U.  S.  Stat.  797. 

23  The  mode  of  disposal  of  Texas  lands  is  well  stated  in  1  Dem- 
bitz,  Land  Titles,  561  et  seq. 

<840) 


Ch.  18]  TRANSFERS  BY  GOVERNMENT.  §   373 

or  in  consideration  of  the  payment  of  a  sum  fixed  by  law, 
this  warrant  authorizing  him  to  ^'locate"  or  ''enter"  a  cer- 
tain number  of  acres  in  the  public  domain.  The  holder  of 
the  warrant  then  selects  his  land,  and  files  with  a  designated 
ofllcial  a  description  of  the  land,  this  being  known  as  the 
"entry."  The  land  so  applied  for  is  then  usually  surveyed 
by  the  public  surveyor,  and,  after  such  survey,  and  his  com- 
pliance with  all  the  other  requirements  of  the  statute,  the 
applicant  is  entitled  to  a  "patent"  or  gi'ant  from  the  state.  "^ 

§  373.     Spanish  and  Mexican  grants. 

Within  the  territory  ceded  to  the  United  States  by  France, 
Spain,  and  Mexico,  there  existed,  at  the  time  of  the  cession, 
private  rights  based  upon  grants  previously  made  by  the  na- 
tion having  dominion  therein,  and  these  grants  the  United 
States  government  was,  either  by  express  stipulation  in  the 
treaty  to  that  efi^ect,  or  by  provisions  preserving  rights  of 
property,  required  to  recognize. 

Though  the  Louisiana  territory  was  purchased  from 
France,  most  of  the  grants  made  therein  before  its  cession 
to  the  United  States  were  made  by  the  Spanish,  and  not  by 
the  French,  government,  the  territory  having  passed  from  the 
former  to  the  latter  but  a  short  time  previously.  The  grants 
made  within  the  limits  of  the  Florida  purchase  previous  to 
the  treaty  of  cession  were  expressly  recognized  in  that  treaty. 

Before  the  cession  of  territory  by  Mexico  to  the  United 
States,  numerous  grants  had  been  made  by  that  government 
from  the  time  of  its  acquisition  of  independence  from  Spain, 
early  in  the  nineteenth  century.  Grants  made  before  that 
period  were  by  the  Spanish  crown,  acting  through  the  gov- 
ernor or  viceroy. 

In  the  performance  of  its  treaty  obligations  to  recognize 

24  See  2  Minor,  Inst.  898;  1  Dembitz,  Land  Titles,  500;  23  Am.  & 
Eng.  Enc.  Law  (1st  Ed.)  53  et  seq. 

(841) 


§   374  REAL    PROPERTY.  [Ch.  18 

these  prior  existing  grants  of  land  in  the  ceded  territory,  this 
government  has  adopted  the  policy  of  requiring  all  persons 
claiming  imder  grants  made  previous  to  the  particular  ces- 
sion in  question  to  submit  their  claims  to  examination  either 
by  commissioners  named  for  the  purpose,  or  by  the  federal 
courts,  and  the  claims  thus  submitted  have  been  the  sub- 
ject of  many  adjudications,  frequently  of  an  adverse  char- 
acter. 

Lands  comprised  within  the  limits  of  the  present  state  of 
Texas  have  been,  in  succession,  the  subject  of  grant  by  the 
Spanish  government,  the  Mexican  government,  the  Mexican 
state  of  Coahuila  and  Texas,  the  republic  of  Texas,  and  the 
present  state  of  Texas.^^  Grants  made  by  the  previous  sov- 
ereignties have  always  been  recognized  by  the  present  state 
of  Texas. 

§  374.     Patents. 

A  patent  is  a  document  issued  by  the  government  to  one- 
to  whom  it  has  transferred  or  agreed  to  transfer  land,  in  or- 
der to  vest  in  the  transferee  the  complete  legal  title,  or  to 
furnish  evidence  of  the  transfer.  Patents  are  regularly  is- 
sued by  the  United  States  government,  and  also  by  the  state 
governments,  to  persons  who  have,  by  the  proper  proceed- 
ings, established  their  right  to  the  ownership  of  land  previ- 
ously belonging  to  the  United  States  or  the  state.  The  pat- 
ent is,  in  form,  a  conveyance  of  the  land,  and  must,  when 
issued  by  the  United  States,  be  signed  in  the  name  of  the 
president,  and  sealed  with  the  seal  of  the  general  land  office, 
and  countersigned  by  the  recorder. ^^     A  state  patent  must 

25  See  Republic  of  Texas  v.  Thorn,  3  Tex.  505;  Norton  v.  Mitch- 
ell, 13  Tex.  51;  Jones  v.  Muisbach,  26  Tex.  237. 

26  McGarrahan  v.  New  Idria  Min.  Co.,  96  U.  S.  316.  See  Rev.  St. 
U.  S.  §  450. 

(842) 


Ch.    18]  TRANSFERS  BY  GOVERNMENT.  §   .;74 

•usually  be  signed  by  the  governor,  and  sealed  with  the  state 
seal.^'^ 

A  patent  is  necessary  to  pass  a  perfect  title  to  public  land 
in  all  cases  except  when  the  legislative  branch  of  the  gov- 
ernment has  made  a  grant  taking  effect  in  praesenti.^^  Con- 
sequently, when  no  such  previous  grant  has  been  made,  the 
patent  constitutes,  and  is  necessary  for,  the  transfer  of  the 
legal  title.-^  When,  on  the  other  hand,  there  has  been  a 
previous  grant  taking  effect  in  praesenti,  the  purpose  of 
the  issue  of  the  patent  is  not  to  transfer  the  title,  but  to 
furnish  evidence  of  the  transfer,  or  to  show  compliance  with 
the  conditions  thereof,  obviating,  in  any  legal  controversy, 
the  necessity  of  other  proof  of  title.^^ 

Even  when  there  has  been  no  legislative  grant  of  the  land, 
the  government,  upon  the  payment  of  the  purchase  price  of 
land  by  an  individual,  and  other  compliance  with  the  statu- 
tory requirements,  thereafter  holds  the  legal  title,  as  any 
other  vendor  of  land  who  has  received  the  purchase  money, 
in  trust  for  the  vendee.^^  But  this  mere  equitable  title  will 
not  support  an  action  of  ejectment  at  common  law,  and  for 
that  purpose  the  legal  title  must  be  acquired  by  the  issue 
of  a  patent.^ ^     In  many  of  the  states,  however,  it  is  pro- 

27  See  State  v.  Morgan,  52  Ark.  150;  Exum  v.  Brister,  35  Miss. 
391;  Hulick  v.  Scovil,  9  111.  159;  Jarrett  v.  Stevens,  36  W.  Va.  445. 

28  Wilcox  V.  Jackson,  13  Pet.  (U.  S.)  498;  Carter  v.  Ruddy,  166 
U.  S.  495. 

29  McGarrahan  v.  New  Idria  Min.  Co.,  96  U.  S.  316;  Langdon  v. 
Sherwood,  124  U.  S.  74;  City  of  Brownsville  v.  Basse,  36  Tex.  500; 
Roads  V.  Symmes,  1  Ohio,  281,  13  Am.  Dec.  621;  Carter  v.  Ruddy, 
166  U.  S.  495;  Wood  v.  Pittman,  113  Ala.  212. 

30  Morrow  v.  Whitney,  95  U.  S.  551;  Wright  v.  Roseberry,  121  U. 
S.  488;  Deseret  Salt  Co.  v.  Tarpey,  142  U.  S.  241;  Kernan  v.  Grif- 
fith, 27  Cal.  89;  Lee  v.  Summers,  2  Or.  267. 

31  Carroll  v.  Safford,  3  How.  (U.  S.)  441;  Witherspoon  v.  Duncan, 
4  Wall.  (U.  S.)  210;  Hussman  v.  Durham,  165  U.  S.  144;  Brill  v. 
Stiles,  35  111.  305,  85  Am.  Dec.  364;  Arnold  v.  Grimes,  2  Iowa,  1. 

32  Hooper  v.  Scheimer,  23  How.  (U.  S.)  235;  Gibson  v.  Chouteau, 

(843) 


§   374  REAL    PROPERTY.  [Ch.    18 

vided  by  statute  that  certificates  issued  by  the  United  States 
land  office,  showing  the  making  of  final  proof  and  payment, 
and  so  entitling  the  holder  to  a  patent,  shall  be  prima  facie 
evidence  of  title  sufficient  to  support  an  action  of  ejectment.^' 
But  a  distinction  is  made  in  this  respect  between  receipts 
issued  by  the  land  office  after  final  proof,  and  receipts  issued 
merely  to  show  that  an  application  or  ''filing"  has  been  made, 
and  the  latter  will  not,  even  under  these  statutes,  support 
ejectment.^"*  When  there  has  been  a  grant  taking  effect  in 
praesenti^  the  grantee  may,  even  without  the  aid  of  any  stat- 
ute, bring  ejectment,  as  having  the  legal  title,  though  a 
patent  has  not  been  issued  to  him.^^ 

A  patent  is,  as  evidence  of  title,  conclusive  in  a  court  of 
law  as  against  collateral  attack,  unless  it  is  invalid  on  its 
face  for  insufficiency  of  langniage  or  execution,  or  unless  it 
is  void  for  want  of  power  to  issue  it,  as  when  the  land  had 
been  previously  granted,  or  was  reserved  from  sale.^^  In 
equity,  however,  a  patent,  valid  on  its  face,  can,  as  against 

13  Wall.  (U.  S.)  92;  Langdon  v.  Sherwood,  124  U.  S.  74;  Seward's 
Lessee  v.  Hicks,  1  Har.  &  McH.   (Md.)  22. 

33  See  Balsz  v.  Liebenow  (Ariz.)  36  Pac.  209;  Surginer  v.  Pad- 
dock, 31  Ark.  528;  Case  v.  Bdgeworth,  87  Ala.  203;  Whittaker  v. 
Pendola,  78  Cal.  296;  Davis  v.  Freeland's  Lessee.  32  Miss.  645; 
Pierce  v.  Frace,  2  Wash.  St.  81;  McLane  v.  Bovee,  35  Wis.  27. 

34Baisz  V.  Liebenow  (Ariz.)  36  Pac.  209;  Hemphill  v.  Davies,  38 
Cal.  577;  Dale  v.  Hunneman,  12  Neb.  221;  Adams  v.  Couch,  1 
Okl.  17. 

35  Deseret  Salt  Co.  v.  Tarpey,  142  U.  S.  241;  Northern  Pac.  R. 
Co.  V.  Cannon  (C.  C.)  46  Fed.  224;  Southern  Pac.  Co.  v.  Burr,  86 
Cal.  279;  Northern  Pac.  R.  Co.  v.  Majors,  5  Mont.  111. 

36  Field  V.  Seabury,  19  How.  (TJ.  S.)  323;  Sherman  v.  Buick,  93 
IT.  S.  209;  Steel  v.  St.  Louis  Smelting  &  Refining  Co.,  106  U.  S. 
447;  Wright  v.  Roseberry,  121  TJ.  S.  488;  Davis'  Adm'r  v.  Wiebbold, 
139  U.  S.  507;  Moore  v.  Wilkinson,  13  Cal.  488;  State  v.  Morgan, 
52  Ark.  150;  State  v.  Sioux  City  &  P.  R.  Co.,  7  Neb.  357;  Webster 
V.  Clear,  49  Ohio  St.  392;  Langenour  v.  Shanklin,  57  Cal.  70;  Bled- 
soe's Devisees  v.  Wells,  4  Bibb  (Ky.)  329;  Jarrett  v.  Stevens,  36 
W.  Va.  445;  Jackson  v.  Hart,  12  Johns.  (N.  Y.)  77,  7  Am.  Dec.  280; 
Norvell  v.  Camm,  6  Munf.   (Va.)  233,  8  Am.  Dec.  742. 

(844) 


Ch.    18]  TRANSFERS  BY  GOVERNMENT.  g   374 

Others  than  honu  fide  purchasers  of  the  land  for  value,  be 
attacked,  for  fraud  in  its  procurement  or  mistake  in  its  is- 
suance, either  by  the  government  or  by  a  person  otherwise 
entitled  to  the  laud  ;"^^  and  if  the  patent  has  been  issued  to 
one  other  than  the  person  entitled  thereto,  he  may  procure 
a  decree  establishing  a  constructive  trust  in  his  favor,  and 
requiring  the  patentee  to  make  a  conveyance  to  him.^^  The 
issuance  of  a  patent,  however,  raises  the  presumption  that 
it  was  validly  issued,  and  one  seeking  to  set  it  aside  must 
sustain  his  averments  in  that  regard  by  clear  proof. ^^ 

A  patent,  when  issued,  dates  back,  as  against  intervening 
claimants,  to  the  time  when  the  equitable  title  vested  in  the 
patentee  by  payment  of  the  purchase  price,  or  otherwise.^*' 

37  St.  Louis  Smelting  &  Refining  Co.  v.  Kemp,  104  U.  S.  636; 
Sparks  v.  Pierce,  115  U.  S.  408;  Sanford  v.  Sanford,  139  U.  S.  642; 
United  States  v.  San  Jacinto  Tin  Co.,  125  U.  S.  273;  United  States 
V.  Missouri,  EL  &  T.  Ry.  Co.,  141  U.  S.  358;  United  States  v.  Mar- 
shall Silver  Min.  Co.,  129  U.  S.  579;  Colorado  Coal  &  Iron  Co.  v. 
United  States,  123  U.  S.  307;  Jackson  v.  Lawton,  10  Johns.  (N.  Y.) 
23,  6  Am.  Dec.  311;  Romain  v.  Lewis,  39  Mich.  233;  Norvell  v. 
Camm,  6  Munf.  (Va.)  238,  8  Am.  Dec.  742;  State  v.  Bachelder,  5 
Minn.  223  (Gil.  178),  80  Am.  Dec.  410. 

38  Stark  V.  Starrs,  6  Wall.  (U.  S.)  412;  Widdicombe  v.  Childers, 
124  U.  S.  400;  Cornelius  v.  Kessel,  128  U.  S.  456;  Bernier  v.  Der- 
nier, 147  U.  S.  242. 

39  Maxwell  Land-Grant  Case,  121  U.  S.  325;  Schnee  v.  Schnee,  23 
Wis.  377,  99  Am.  Dec.  183;  City  of  Mobile  v.  Eslava,  9  Port.  (Ala.) 
577;   33  Am.  Dec.  325. 

40  Gibson  v.  Chouteau,  13  Wall.  (U.  S.)  92;  Hussman  v.  Durham, 
165  U.  S.  144;  Waters  v.  Bush,  42  Iowa,  255;  Reynolds  v.  Plymouth 
County,  55  Iowa,  90;  Waterman  v.  Smith,  13  Cal.  419.  See  post, 
§  377,  note  76, 

(845) 


CHAPTEE  XIX. 
VOLUNTARY   TRANSFER   INTER   VIVOS. 

I.  Classes  of  Conveyances. 

§  375.  Conveyances  at  common  law. 

376.  Conveyances  operating  under  the  Statute  of  Uses. 

377.  Conveyances  employed  in  the  United  States. 

378.  Conveyances  failing  to  take  effect  in  the  manner  intended. 

II.  Form  and  Essentials  of  a  Conveyance. 

§  379.  General  considerations. 

380.  Designation  of  the  parties. 

381.  Words  of  conveyance. 

382.  The  habendum. 

383.  Exceptions  and  reservations. 

384.  Consideration. 

385.  Reality  of  consent. 

386.  Effect  of  alterations. 

III.  Description  of  the  Land. 

§  387.  General  considerations. 

388.  Description  by  government  survey. 

389.  Reference  to  plat. 

390.  Monuments,  cdurses,  and  distances. 

391.  Boundaries  on  water. 

392.  Boundaries  on  ways. 

393.  Appurtenances. 

IV.  Covenants  for  Title. 

§  394.  General  considerations. 

395.  Covenant  for  seisin. 

396.  Covenant  for  right  to  convey. 

397.  Covenant  against  incumbrances. 

398.  Covenants  for  quiet  enjoyment  and  of  warranty. 

399.  Covenant  for  further  assurance. 

400.  The  measure  of  damages. 

401.  Covenants  running  with  the  land. 

(846) 


Ch.  19]  TRANSFER  INTER  VIVOS.  §   375 

V.  Execution  of  the  Conveyance. 

§  402.     Signing. 

403.  Sealing. 

404.  Witnesses. 

105.  Acknowledgment. 

406.  Delivery. 

407.  Acceptance. 

408.  Execution  by  agent. 

I.     Classes  of  Conveyances-. 

At  common  law,  tlie  modes  of  transfer  of  land  by  voluntary 
act  of  the  owner  were  (1)  feoffment,  or  livery  of  seisin;  (2) 
fines  and  recoveries;  (3)  grant,  which  operated  only  on  incor- 
poreal things  and  future  estates,  as  not  being  capable  of  liv- 
ery; (4)  lease,  by  which  a  less  estate  than  that  of  the  grantor 
was  created;  (5)  surrender,  by  which  a  particular  estate  was 
conveyed  to  the  reversioner  or  remainderman;  (6)  assignment, 
by  which  leasehold  interests  were  transferred;  and  (7)  ex- 
change. 

Conveyances  operating  under  the  Statute  of  Uses  are  (1) 
bargain  and  sale,  and  (2)  covenant  to  stand  seised. 

In  this  country  all  the  above  classes  of  conveyances  are 
valid,  but  feoffment,  fines  and  recoveries,  and  exchange,  are 
practically  obsolete.  There  are,  moreover,  in  many  states, 
statutory  provisions  for  conveyances  in  writing,  without  refer- 
ence to  any  requirements  existing  at  common  law  or  by  the 
Statute  of  Uses.  A  conveyance  by  "quitclaim,"  which  is  fre- 
quently employed,  corresponds,  to  some  extent,  to  a  release,  in 
that  it  purports  to  convey  only  such  estate  as  the  grantor 
owns. 

A  conveyance  which,  for  any  reason,  cannot  operate  as  in- 
tended, will  be  supported  as  another  class  of  conveyance,  if 
possible. 

§  375.     Conveyances  at  common  law — Feoffment. 

The  transfer  of  land  by  "livery  of  seisin,"  which  has  al- 
ready been  briefly  described,^   was  ordinarily  known  as  a 

lAnte,  §  16. 

(847) 


g   375  REAL    PROPERTY.  [Ch.    19 

"feoffment,"  and  the  terms  were,  it  seems,  used  interchange- 
ably.^ The  person  making  the  transfer  was  known  as  the 
"feoffor,"  and  the  transferee  as  the  "feoffee."  The  livery 
was  ordinarily  accompanied  by  a  "charter  of  feoffment,"  de- 
claring the  limitations  of  the  estate  or  estates  vested  in  the 
feoffee,  but  the  livery  of  seisin  was  alone  necessary  until 
the  passage  of  the  Statute  of  Frauds,  which  in  effect  de- 
clared that  all  estates  created  by  livery  of  seisin  only,  or  by 
parol,  and  not  put  in  writing  and  signed  by  the  parties  so 
making  and  creating  the  same,  or  their  agents,  should  be 
estates  at  will  merely.^  This  mode  of  transfer  was  available 
only  in  the  case  of  estates  accompanied  by  seisin, — that  is, 
estates  of  freehold  in  possession, — and  was  not  available  for 
the  transfer  of  rights  in  incorporeal  things."* 

Since  a  feoffment  operated  on  the  possession  alone,  any 
person  having  possession  of  land,  even  though,  as  in  the  case 
of  a  tenant  for  years,  not  actually  seised,  could,  by  a  feoff- 
ment to  a  stranger,  create  in  the  latter  an  estate  of  any 
quantum;  and  so  one  having  seisin  as  of  an  estate  for  life 
could  create  in  another  a  greater  estate.  Since  the  effect  of 
such  a  transfer  of  seisin  was  to  operate  wrongfully  upon  the 
interest  of  the  owner  of  the  reversion  or  remainder,  it  was 
termed  a  "tortious"  conveyance.^ 

Transfer  by  feoffment  is  now  in  effect  obsolete,  though  oc- 
casionally the  theory  of  such  a  transfer  may  be  resorted  to 
for  the  purpose  of  upholding  a  conveyance  otherwise  invalid 
or  ineffective  to  carry  out  the  evident  purpose  of  the  par- 
ties.®    In  many  states  the  statutes  expressly  dispense  with 

2  Chains,  Real  Prop.  321. 

3  29  Car.  II.  c.  3,  §  1.    See  Co.  Litt.  48;  2  Bl.  Comm.  313;  Challls, 
Real  Prop.  326,  327. 

4Slieppard's   Touchstone,   228;    Williams,   Real   Prop.    (18th   Ed.) 
239;  2  Bl.  Comm.  314.     See  ante,  §  16. 

5  Co.  Litt.  §  611,  and  Butler's  note;   Co.  Litt.  251a,  330b;   Challis, 
Real  Prop.  328. 

6  Hunt  V.  Hunt,  14  Pick.    (Mass.)    374;    Carr  v.  Richardson,  157 

(848) 


Ch.    19]  TRANSFER  INTER  VIVOS.  §   375 

the  necessity  of  livery  of  seisin  for  the  conveyance  of  real 
property.^ 

Fines  and  recoveries. 


Fines  and  recoveries  were  collusive  actions  brought  for  the 
purpose  of  effecting  a  transfer  of  interests  in  land  not  other- 
wise transferable.  They  have  been  abolished  by  statute  in 
England,  and  in  no  state  of  this  country  are  they,  it  is  be- 
lieved, in  practical  use.^  They  were  for  many  years  utilized 
for  the  purpose  of  barring  estates  tail,  and  thereby  evading 
the  statute  De  Bonis  Conditionalibus^  but  they  were  appro- 
priate and  necessary  for  other  purposes,  the  most  important 
of  which  was  the  transfer  of  land  by  a  married  woman,  she 
not  being  competent  to  make  an  ordinary  conveyance. 

Grant. 


A  gi-ant  was,  at  common  law,  made  use  of  for  the  transfer 
of  such  interests  in  land  as,  from  their  nature,  were  in- 
capable of  transfer  by  feoffment, — that  is,  of  which  there 
could  be  no  seisin,  including  all  rights  in  another's  land,  or 
other  incorporeal  things,  and  also  future  estates.^"  A  grant 
always  involved  a  "deed,"- — that  is,  a  writing  under  seal, — 
since  no  other  form  of  writing  had,  at  common  law,  any 
legal  effect.  ^^ 

At  common  law  the  lord's  right  to  the  services  of  the  ten- 
ant— the  "seignory" — could  not  be  transferred  to  another 

Mass.  576;  Eckman  v.  Eckman,  68  Pa.  St.  460;  Witham  v.  Brooner, 
63  111.  344. 

''  1  Stimson's  Am.  St.  Law,  §  1470. 

8  These  proceedings  are  explained  in  2  Bl.  Camm.  348. 

»Ante,  §  27. 

10  Co.  Litt.  9b,  49a,  172a;  2  Bl.  Comm.  317;  2  Sanders.  Uses  & 
Trusts   (5th  Ed.)   29. 

11  Co.  Litt.  172a;  Sheppard's  Touchstone,  229;  1  Hayes,  Convey- 
ancing (5th  Ed.)  25;  2  Sanders,  Uses  &  Trusts  (5th  Ed.)  41. 

(849) 
Real  Prop.— 54.  , 


§   375  REAL    PROPERTY.  [Ch.   19 

■witLont  "attornment"  by  tlie  tenant, — that  is,  acceptance  of 
the  new  lord.  The  same  principle  applied  in  the  case  of  the 
grant  of  a  reversion,  it  not  being  valid  unless  the  tenant  at- 
torned to  the  grantee. ^^  The  necessity  of  attornment  was, 
as  before  stated,  abolished  in  England  by  4  Anne,  c.  16,  §  9, 
and  is  no  longer  recognized  in  this  country.^ ^ 

Lease. 


A  lease  is  a  conveyance  of  an  estate  for  life,  for  years,  or 
at  will,  by  one  who  has  a  greater  estate.  At  common  law",  if 
the  estate  conveyed  was  for  life,  livery  of  seisin  w^as  also 
required,^  ^  but  if  for  years  or  at  will  merely,  an  oral  lease 
was  sufficient.^  ^  By  the  Statute  of  Frauds,  a  writing  was 
rendered  necessary  for  the  transfer  of  an  estate  for  years, 
excepting  certain  leases  not  exceeding  three  years.-'^®  But, 
even  at  common  law,  a  lease  for  years  of  an  incorporeal 
thing  was  invalid  unless  in  writing  and  under  seal,  since 
such  a  thing  lay  in  grant  for  all  jDurposes,  and  no  other 
method  of  transfer  was  recognized.^"  The  form  and  requi- 
sites of  a  lease  have  been  previously  considered,  in  connec- 
tion with  the  subject  of  estates  for  years. 

Release. 


A  conveyance  by  release  is  a  conveyance  of  an  estate  or  in- 
terest in  land  to  one  who  has  possession  thereof,  or  a  vested  es- 
tate therein.  It  was  utilized,  at  common  law,  in  cases  in  which 
the  person  to  whom  the  conveyance  was  to  be  made  was  al- 

i2Litt.  §§  551,  567,  568;  Co.  Litt.  309a,  Butler's  note. 

13  See  ante,  S  47. 

14  2  Bl.  Comm.  318. 

15  Sheppard's  Touchstone,   267. 

16  29  Car.  II.   c.  3,  §§   1,  2. 

1- Co.  Litt.  85a;  Tottel  v.  Howell,  Noy,  54;  14  Vin.  Abr.  tit. 
"Grant"  (Ga.) ;  Sheppard's  Touchstone,  267;  Somerset  v.  Fogwell, 
5  Barn.  &  C.  875,  3  Gray's  Cas.  230;  Bird  v.  Higginson,  2  Adol.  &  E. 
696,  3  Gray's  Cas.  231. 

(850) 


Ch     19]  TRANSFER  INTER  VIVOS.  §   375 

ready  in  possession,  so  that  no  livery  of  seisin  could  be  given 
unless  he  should  first  quit  possession,  which  would  have  in- 
volved an  idle  multiplication  of  ceremonies.^^  A  release 
may  be  made  by  the  owner  of  the  reversion  or  remain- 
der expectant  upon  a  life  estate,  whether  it  be  created  by  act 
of  the  parties  ^^  or  by  act  of  the  hiw,  such  as  an  estate  of 
dower  or  curtesy, ^"^  the  life  estate  being  thereby  enlarged  to 
a  fee  simple  or  fee  tail.  A  release  may  also  be  made  by  the 
owner  of  the  reversion  to  the  tenant  of  an  estate  for  years 
or  at  will,-^  but  not  to  a  tenant  at  sufferance.^^  Releases 
thus  made  by  a  reversioner  or  remainderman  to  the  particu- 
lar tenants  were  said  to  inure  by  way  of  enlargement  of  the 
estate  (enlarger  V estate). ^^  A  mere  interesse  termini — that 
is,  the  right  of  a  lessee  who  has  not  yet  entered  under  his 
lease — does  not  entitle  him  to  take  a  release  by  way  of  en- 
largement,^'* it  being  necessary  that  the  lessee  be  in  actual 
possession,  or  in  possession  by  force  of  the  Statute  of  Uses.^^ 
A  release,  in  order  to  enlarge  the  particular  estate  to  one  of 
inheritance,  must,  at  common  law,  contain  the  word  "heirs," 
as  in  the  case  of  a  conveyance  between  strangers.^ ^ 

A  release  may  also  be  made,  not  by  way  of  enlargement  of 
an  estate,  but  by  way  of  passing  an  estate  {mitter  V estate), 
as  when  one  joint  tenant  or  coparcener  releases  his  estate  to 
his  cotenant.  In  this  case,  words  of  inheritance  have  never 
been  required,  since  the  person  to  whom  the  release  is  made 
is  regarded  as  already  seised  of  the  freehold,  and  the  release 
is  merely  a  discharge  from  the  claim  of  another  seised  under 

18  2  Pollock  &  Maitland,  Hist  Eng.  Law,  90. 

19  Co.  Litt.  273b. 

20  2  Sanders,  Uses  &  Trusts  (5th  Ed.)  73. 

21  Litt.  §§  460,  465. 

22  Co.  Litt.  270b. 

23  Litt  §  465;   Challis,  Real  Prop.  331. 

24  Litt  §  459;  Co.  Litt.  270a. 
='-  See  ante,  §  88. 

26  Litt.  §  465;  Co.  Litt  273b. 

(851) 


§  375  REAL    PROPERTY.  [Ch.  19 

the  same  title. ^^  A  release  was  never  regarded  as  sufficient 
to  pass  the  interest  of  one  tenant  in  common  to  another,  since 
thej  are  regarded  as  having  distinct  freeholds.^^  A  third 
mode  of  operation  of  a  release  is  by  way  of  "extinguishment" 
of  an  interest  in  another's  land,  as  when  the  owner  of  a  rent, 
a  right  of  profit,  or  an  easement,  releases  his  rights  to  the 
owner  of  the  land  subject  thereto.^^  The  only  other  modes 
otf  operation  of  release  at  common  law  occurred  in  the  case 
of  a  release,  by  one  disseised,  of  all  his  right  or  claim  in 
favor  of  the  disseisor,  or  of  his  heir  or  feoffee,  this  being 
known  as  a  "release  by  way  of  passing  the  right"  {mitter  le 
droit  J.^'^ 

A  release  must,  at  common  law,  be  by  deed, — that  is,  by 
writing  under  seal.^^ 

Strictly  speaking,  at  the  present  day,  as  at  common  law,  a 
release  cannot  be  made  to  one  having  neither  title  to  or  pos- 
session of  the  land,^^  but  a  conveyance  purporting  to  be  a 
release  will  almost  invariably  be  upheld  as  a  conveyance  by 
bargain  and  sale  or  grant.^^ 

Surrender. 


A  surrender  is  a  yielding  up  of  an  estate  for  life  or  years 
to   him   that   has   the    immediate   reversion   or   remainder, 

27  Co.  Litt.  273b,  and  Butler's  note. 

28  4  Cruise,  Dig.  tit  32,  c.  6,  §  25;  2  Preston,  Abstracts,  77. 

29  Litt.  §  480;  Co.  Litt.  280a. 

30  Litt.  §  466;  4  Cruise,  Dig.  tit.  32,  c.  6,  §  26. 

31  Co.  Litt.  264b;  2  Pollock  &  Maitland,  Hist.  Eng.  Law,  91. 
32Runyon  v.  Smith  (C.  C.)  18  Fed.  579;  Branbam  v.  City  of  San 

Jose,  24  Cal.  585;   Warren  v.  Childs,  11  Mass.  222.     Compare  Ses- 
sions V.  Reynolds,  7  Smedes  &  M.   (Miss.)  130. 

33  Pray  v.  Pierce,  7  Mass.  381,  5  Am.  Dec.  59 ;  Conn's  Heirs  v. 
Manifee,  2  A.  K.  Marsh.  (Ky.)  396,  12  Am.  Dec.  417;  Hall's  Lessee 
V.  Ashby,  9  Ohio,  96,  34  Am.  Dec.  424;  Baker  v.  Whiting,  3  Sumn. 
475,  Fed.  Cas.  No.  787;  Havens  v.  Sea  Shore  Land  Co.,  47  N.  J. 
Eq.  365 ;  Lynch  v.  Livingston,  6  N.  Y.  422.  See  Ely  v.  Stannard,  44 
Conn.  528. 
(852) 


Ch.    19]  TRANSFER  INTER  VIVOS.  5^   375 

wherein  the  particular  estate  may  merge  or  "drown,"  by 
agreement  of  the  parties.^'*  A  surrender  may  be  either  "ex- 
press" or  "implied,"  an  implied  surrender  being  usually  re- 
ferred to  as  a  surrender  "by  operation  of  law." 

Express  surrender. 

An  express  surrender,  to  be  valid,  must  be  by  one  in  pos- 
session, and  consequently  it  cannot  be  made  by  one  having 
a  mere  interesse  termini.^^  Furthermore,  as  above  stated, 
the  interest  surrendered  must  bear  such  a  relation,  both  in 
quantum  and  position,  to  the  estate  of  the  surrenderee,  that 
it  may  merge  therein,  and  consequently  the  estate  surren- 
dered must  immediately  precede  the  estate  of  the  surren- 
deree, with  no  vested  estate  intervening,  and  it  must  be  no 
greater  in  quantum  than  the  surrenderee's  estate.^^ 

At  common  law,  a  surrender  might  be  by  parol ;  but  by 
the  Statute  of  Frauds  it  is  provided  that  no  surrender  (other- 
wise than  by  "act  and  operation  of  law")  shall  be  valid  if 
not  in  writing,  signed  by  the  surrenderor,  or  by  his  agent, 
lawfully  authorized.^^  Accordingly,  mere  cancellation  or 
destruction  of  the  lease  is  not  effective  as  a  surrender  of  a 
leasehold  estate.^^ 

While  the  words  "surrender,  grant,  and  yield  up,"  or  sim- 
ilar expressions,  are  commonly  employed  in  a  surrender,  no 

34  Co.  Litt.  387b;    2  Bl.  Comm.  326. 

35  Co.  Litt.  338b;  Bacon,  Abr.  "Leases"   (S)   2,  2. 

3G  Co.  Litt.  337b;  3  Preston,  Estates,  150,  152,  194.     See  ante,  §  32. 

37  29  Car.  II.  c.  3,  §  3.  See  Welcome  v.  Hess,  90  Cal.  507,  25  Am. 
St.  Rep.  145;  Kittle  v.  St.  John,  7  Neb.  73;  Felker  v.  Richardson, 
67  N.  Y.  509;  Greider's  Appeal,  5  Pa.  St.  422;  Burnham  v.  O'Grady, 
90  Wis.  461;   Coe  v.  Hobby,  72  N.  Y.  141,  28  Am.  Rep.  120. 

38  Magennis  v.  MacCullogh,  Gilb.  Cas.  235,  3  Gray's  Cas.  242; 
Roe  d.  Berkeley  v.  Archbishop  of  York,  6  East,  86;  Doe  d.  Courtail 
V.  Thomas,  9  Barn.  &  C.  288;  Rowan  v.  Lytle,  11  Wend.  (N.  Y.) 
617.     See  National  Union  Bldg.  Ass'n  v.  Brewer,  41  111.  App.  223. 

(853) 


§  375  REAL   PROPERTY.  [Ch.    19 

particular  words  are  necessary,  and  it  is  sufficient  that  the 
intention  of  the  parties  to  effect  a  surrender  clearly  ap- 
pears.^^ 

Surrender  by  operation  of  law. 

A  surrender  by  "act  and  operation  of  law,"  which  is  ex- 
pressly excepted  from  the  Statute  of  Frauds,  is  a  surrender 
which  the  law  infers  from  certain  acts  by  the  parties  as 
being  inconsistent  with  the  continued  distinct  existence  of 
the  two  former  estates. 

A  surrender  by  operation  of  law  occurs  when  the  tenant 
accepts  from  the  reversioner  a  new  lease,  to  begin  imme- 
diately, or  at  any  time  during  the  existence  of  the  previous 
lease;  this  result  being  based  on  the  theory  that,  by  such 
acceptance,  the  tenant  is  estopped  to  deny  the  validity  of 
such  new  lease,  which  nevertheless  cannot  be  valid  unless 
the  first  lease  is  terminated.^^  The  new  lease  must  be  a 
valid  lease,^^  and  must,  it  seems,  be  sufficient  to  pass  an  in- 
terest according  to  the  intention  and  contract  of  the  par- 
ties.*^ The  fact  that  the  new  lease  is  oral  is  immaterial  if 
an  oral  lease  is  sufficient  to  create  the  interest  intended  to  be 

39  2  Taylor,  Landl.  &  Ten.  §  510;  V/oodfall,  Landl.  &  Ten.  (16th 
Ed.)  315;  Harris  v.  Hiscock,  91  N.  Y.  340;  Shepard  v.  Spaulding, 
4  Mete.  (Mass.)   416. 

40  ive  V.  Sams,  2  Cro.  Eliz.  521,  3  Gray's  Cas.  241;  Ive's  Case,  5 
Coke,  11a;  Lyon  v.  Reed,  13  Mees.  &  W.  285,  3  Gray's  Cas.  254; 
Schieffelin  v.  Carpenter,  15  Wend.  (N.  Y.)  400,  3  Gray's  Cas.  267; 
Bacon,  Abr.  "Leases"  (S)  2,  1;  Otis  v.  McMillan,  70  Ala.  46;  Don- 
kersley  v.  Levy,  38  Mich.  54;  Enyeart  v.  Davis,  17  Neb.  228;  Jung- 
erman  v.  Bovee,  19  Cal.  354;  Flagg  v.  Dow,  99  Mass.  18. 

41  Zouch  V.  Parsons,  3  Burrows,  1794;  Doe  d.  Egremont  v.  Courte- 
nay,  11  Q.  B.  702;  Smith  v.  Kerr,  108  N.  Y.  31,  2  Am.  St.  Rep.  362. 

42Woodfall,  Landl.  &  Ten.  (16th  Ed.)  318;  Schieffelin  v.  Car- 
penter, 15  Wend.  (N.  Y.)  400,  3  Gray's  Cas.  267;  Coe  v.  Hobby,  72 
N.  Y.  141,  28  Am.  Rep.  120.  See  5  Bacon,  Abr.  (Am.  Ed.)  p.  664. 
But  see  Hamerton  v.  Stead,  3  Barn.  &  C.  478,  3  Gray's  Cas.  246. 

(854) 


Ch.  19]  TRANSFER  INTER  VIVOS.  §   375 

created.^^  Since  the  effect  of  a  new  lease  as  a  surrender  is 
by  the  operation  of  a  rule  of  law,  and  is  not  the  effect  of  an 
agi'eement  of  the  parties,  it  might  be  considered  that  sncb 
operation  wonld  not  be  affected  by  the  fact  that  it  is  con- 
trary to  the  intention  of  the  parties/^  In  at  least  two  states, 
however,  a  different  view  is  taken,  the  new  lease  being-  re- 
garded as  merely  raising  a  presumption  of  a  surrender, 
which  may  be  rebutted  by  evidence  that  the  intention  was 
otherwise.  ^^ 

If  the  tenant  abandons  possession  of  the  premises,  and 
the  landlord  consents  thereto,  or  takes  possession  with  the 
purpose  of  accepting  the  abandonment,  a  surrender  results, 
whether  there  is  or  is  not  an  express  agreement  that  the 
change  of  possession  shall  have  such  an  effect."*^  But  the 
taking  of  possession  hj  the  landlord  must  be  with  the  inten- 
tion of  accepting  the  tenant's  action  as  a  surrender  of  the 
premises,  and  no  surrender  results  if  he  takes  possession 
merely  to  protect  or  repair  the  premises.^ ^  So,  the  ac- 
ceptance of  the  keys  by  the  landlord  -does  not  necessarily 

43  Comyn's  Dig.  "Surrender,"  1,  1;  Dodd  v.  Acklom,  6  Man.  &  G. 
679,  3  Gray's  Gas.  250;  Evans  v.  McKanna,  89  Iowa,  362;  Nachbour 
v.  Wiener,  34  111.  App.  237.  See  Schieffelin  v.  Carpenter,  1.5  Wend. 
(N.  Y.)    400,  3  Gray's  Gas.  267. 

44  See  Lyon  v.  Reed,  13  Mees.  &  W.  285,  3  Gray's  Cas.  254; 
Brown  v.  Cairns,  107  Iowa,  727. 

45  Flagg  V.  Dow,  99  Mass.  18;  Van  Rensselaer's  Heirs  v.  Penni- 
man,  6  Wend.^(N.  Y.)  569;  Smith  v.  Kerr,  108  N.  Y.  31,  2  Am.  St. 
Rep.  362;  Winant  v.  Hines,  6  N.  Y.  St.  Rep.  261. 

46Grimman  v.  Legge,  8  Barn.  &  C.  324;  Dodd  v.  Acklom,  6  Man. 
&  G,  672,  3  Gray's  Cas.  251;  Lamar  v.  McNamee,  10  Gill  &  J.  (Md.) 
116,  32  Am.  Dec.  152;  Talbot  v.  Whipple,  14  Allen  (Mass.)  177; 
Baiimier  v.  Antiau,  65  Mich.  31;  Elliott  v.  Aiken,  45  N.  H.  30;  Prior 
V.  Kiso,  81  Mo.  241. 

4"  Oastler  v.  Henderson,  2  Q.  B.  Div.  575;  Finch  v.  Moore,  50 
Minn.  116;  Bowen  v.  Clarke,  22  Or.  566,  29  Am.  St.  Rep.  625; 
Milling  V.  Becker,  96  Pa.  St.  182;  Texas  Loan  Agency  v.  Fleming, 
92  Tex.  458. 

(855) 


§   375  REAL   PROPERTY.  [Ch.    19 

effect  a  surrender  by  operation  of  law.^^  Even  the  fact  that 
the  landlord  attempts  to  lease  the  premises  to  another  person 
■does  not  necessarily  show  a  consent  to  the  abandonment.^* 
But  if  the  landlord  does  make  another  lease  to  a  third  party, 
since  this  deprives  the  former  lessee  of  all  dominion  over 
the  premises,  it  is  regarded  as  constituting  an  acceptance  of 
the  abandonment,^"  unless  he  reserves  his  rights  as  against 
the  former  tenant  by  express  notice  or  stipulation.^^ 

A  surrender  by  operation  of  law  also  occurs  when  the 
lessee  consents  to  the  granting  of  a  lease  to  another,  and  gives 
up  his  possession  to  such  other  f"  and  on  this  principle  a 

48  Oastler  v.  Henderson,  2  Q.  B.  Div.  575;  Auer  v.  Penn,  99  Pa. 
St.  370,  3  Gray's  Gas.  273;  Blake  v.  Dick,  15  Mont.  236,  48  Am.  St. 
Rep.  671;  Bowen  v.  Glarke,  22  Or.  566,  29  Am.  St.  Rep.  625;  Nelson 
V.  Thompson,  23  Minn.  508;  Prentiss  v.  Warne,  10  Mo.  601. 

49  Walls  V.  Atcheson,  3  Bing.  462;  Oastler  v.  Henderson,  2  Q. 
B.  Div.  575;  Blake  v.  Dick,  15  Mont.  236,  48  Am.  St.  Rep.  671; 
Reeves  v.  McGomeskey,  168  Pa.  St.  571;  Vincent  v.  Frelich,  50  La. 
Ann.  378,  69  Am.  St.  Rep.  436. 

50  Oastler  v.  Henderson,  2  Q.  B.  Div.  575;  Welcome  v.  Hess,  90 
Cal.  507,  25  Am.  St.  Rep.  145;  Ladd  v.  Smith,  6  Or.  316;  Pelton 
V.  Place,  71  Vt.  430;  Huling  v.  Roll,  43  Mo.  App.  234;  Williamson 
V.  Crossett,  62  Ark.  393;  Schuisler  v.  Ames,  16  Ala.  73,  50  Am. 
Dec.  168. 

51  Dawson  v.  Lamb.  3  Car.  &  K.  269;  Auer  v.  Penn,  99  Pa.  St. 
370,  3  Gray's  Gas.  273;  Underhill  v.  Gollins,  132  N.  Y.  269;  Winant 
V.  Hines,  6  N.  Y.  St.  Rep.  261;  Bloomer  v.  Merrill,  1  Daly  (N.  Y.) 
485,  29  How.  Pr.  (N.  Y.)  259;  Brown  v.  Cairns,  107  Iowa,  727;  Alsup 
V.  Banks,  68  Miss.  664,  24  Am.  St.  Rep.  294;  Bowen  v.  Glarke,  22 
Or.  566,  29  Am.  St.  Rep.  625;  Rees  v.  Lowy,  57  Minn.  381.  See 
Wolffe  V.  Wolff,  69  Ala.  549,  44  Am.  Rep.  526.  But  that  the  land- 
lord cannot  lease  to  another,  and  yet  reserve  his  rights  against 
the  former  lessee,  see  Welcome  v.  Hess,  90  Cal.  507,  25  Am.  St. 
Rep.    145.  ' 

In  Illinois,  a  lease  to  another  by  the  landlord  after  abandonment 
by  the  tenant  does  not  involve  a  surrender,  even  though  there  is 
no  notice  or  stipulation  that  the  lease  shall  not  have  that  effect. 
Humiston  v.  Wheeler,  175  111.  514;  Marshall  v.  John  Grosse  Cloth- 
ing Co.,  184  111.  421,  75  Am.  St.  Rep.  181. 

52Nickells  v.  Atherstone,  10  Q.  B.  944,  3  Gray's  Gas.  264;  Kinsey 
(856) 


Oh.    19]  TRANSFER  INTER  VIVOS.  §   375 

surrender  may  be  implied  from  the  fact  that  the  landlord 
accepts  as  his  tenant  a  sublessee  of  the  original  tenant.^^  In 
order  that,  in  cases  of  this  character,  the  lease  to  a  third 
person  effect  a  surrender,  it  must  be  accompanied  or  followed 
by  a  transfer  to  him  of  the  possession.^^ 

Assignment. 


The  term  "assignment,"  in  connection  with  the  law  of 
land,  is  commonly  applied  to  the  transfer  of  a  chattel  inter- 
est in  land.^^  At  common  law,  an  assignment  of  an  interest 
in  land,  as  distinguished  from  an  interest  in  an  incorporeal 
thing,  might  be  made  without  writing,^^  but,  by  the  Statute 
of  Frauds,^ ^  a  writing  signed  by  the  assignor,  or  by  his  agent 
duly  authorized,  is  required.  The  important  questions  as 
to  the  right  of  a  tenant  to  make  an  assignment  of  his  lease- 
hold interest,  and  as  to  when  a  transfer  by  him  constitutes 
an  assignment  and  when  a  sublease,  have  been  previously 
considered.^^ 

Exchange. 


An  exchange  is  a  mutual  conveyance  of  equal  interests  in 
distinct  pieces  of  land.     At  common  law,  if  both  pieces  of 

V.  Minnick,  43  Md.  112;  Dills  v.  Stobie,  81  111.  202;  Fry  v.  Patridge, 
73  111.  51;  Morgan  v.  McCollister,  110  Ala.  319;  Wallace  v.  Ken- 
nelly,  47  N.  J.  Law,  242;   Bowen  v.  Haskell,  53  Minn.  480. 

53  Thomas  v.  Cook,  2  Barn.  &  Aid.  119,  3  Gray's  Cas.  244;  Nick- 
ells  V.  Atherstone,  10  Q.  B.  944,  3  Gray's  Cas.  264;  Amory  v.  Kan- 
noffsky,  117  Mass.  351,  19  Am.  Rep.  416. 

54Wallis  V.  Hands  [1893]  2  Ch.  75;  Davison  v.  Gent,  1  Hurl.  &  N. 
744;    Felker  v.   Richardson,   67   N.  H.   509. 

Such  a  case  of  a  new  lease  must  be  carefully  distinguished  from 
the  acceptance  by  the  landlord  of  the  lessee's  assignee  as  tenant 
under  the  old  lease.  See  ante,  §  46.  And  see  Hunt  v.  Gardner, 
39  N.  J.  Law,  530;  Jones  v.  Barnes,  45  Mo.  App.  590. 

sn  4  Cruise,  Dig.  tit.  32,  c.  6,  §  15;  2  Bl.  Comm.  326. 

5c  4  Cruise,  Dig.  tit.  32,  c.  6,  §  20. 

57  29  Car.  II.    c.  3,  §  3. 

•'••s  See  ante,  §§  46,  48. 

(857) 


§   376  REAL    PROPERTY.  [Ch.    19" 

land  lay  in  the  same  county,  the  exchange  might  be  oral, 
while,  if  situated  in  different  counties,  a  deed  was  required.^^ 
But,  by  the  Statute  of  Frauds,  a  writing  is  necessary  on  the 
exchange  of  freeholds  or  of  terms  for  years  other  than  cer- 
tain terms  for  three  years  or  less.^'^  No  livery  of  seisin  was 
necessary  at  common  law,  but  each  party  to  the  exchange 
was  required  to  enter  while  both  were  alive.^^ 

A  common-law  exchange  could  not  be  effected  unless  the 
estates  of  the  respective  parties  were  of  the  same  legal  quan- 
tum,— that  is,  an  estate  in  fee  simple  could  be  exchanged 
only  for  an  estate  of  the  same  character,  an  estate  for  twenty 
years  only  for  an  estate  for  twenty  years,  and  so  on.*^^  The 
word  "exchange"  was  required  to  be  used,  and  no  other  ex- 
pression would  supply  its  place.®^  A  common-law  exchange, 
answering  to  the  foregoing  requirements,  probably  never  oc- 
curs in  modern  practice. 

§  376.     Conveyances  operating  under  the  Statute  of  Uses. 

The  Statute  of  Uses,  as  has  been  previously  explained, 
gave  rise  to  two  entirely  new  methods  of  transferring  legal 
estates  in  land,  to-wit,  the  conveyance  by  "bargain  and  sale," 
and  that  by  "covenant  to  stand  seised" ;  the  former  being 
based  upon  a  use  raised  in  the  intended  grantee  by  the  pay- 
ment of  a  pecuniary  consideration,  usually  merely  nominal,. 

59Litt.   §§  62,   63;    Co.  Litt.  50a. 

60  29  Car.  II.  c.  3,  §§  1-3;  Co.  Litt.  50a,  Butler's  note.  See  Dowl- 
ing  V.  McKenney,  124  Mass.  478;  Cass  v.  Thompson,  1  N.  H.  65,  8 
Am.  Dec.  36;  Rice  v.  Peet,  15  Johns.  (N.  Y.)  503. 

61  Co.  Litt.  50b. 

62  Litt.  §§  64,  65;  Co.  Litt.  51a;  2  Bl.  Comm.  323;  Anonymous, 
3  Salk.  157;  Windsor  v.  Collinson,  32  Or.  297;  Long  v.  Fuller,  21 
Wis.  121. 

63  Co.  Litt.  51b;  2  Bl.  Comm.  323;  Eton  College  v.  Winchester,  3 
Wils.  468;  Cass  v.  Thompson,  1  N.  H.  65,  8  Am.  Dec.  36;  Dean  v. 
Shelly,  57  Pa.  St.  426,  98  Am.  Dec.  235;  Windsor  v.  Collinson,  32 
Or.  297. 

(858) 


Ch.  19]  TRANSFER  INTER  VIVOS.  §   377 

and  the  latter  being  based  on  the  raising  of  a  use  by  a  cove- 
nant, in  favor  of  one  related  by  blood  or  marriage,  to  hold 
the  title  for  the  nse  of  the  latter,  the  statute  executing  tlie 
use  in  both  cases.^^  Since  the  effect  of  this  statute  was  to 
enable  the  owner  of  land,  by  a  mere  contract  of  sale,  upon 
the  payment  of  a  pecuniary  consideration,  to  vest  the  legal 
title  in  another,  without  any  writing  or  ceremony  whatever, 
and  with  absolute  secrecy,  a  statute  was  passed  in  the  same 
year,  called  the  "Statute  of  Enrollments,"^^  requiring  all 
bargains  and  sales  of  freehold  interests,  in  order  to  be  valid, 
to  be  made  by  deed, — that  is,  a  writing  under  seal,  enrolled 
in  court,  or  with  certain  officials.  The  statute  did  not  apply 
to  conveyances  by  covenant  to  stand  seised.  This  statute  has 
usually  been  regarded  as  not  in  force  in  this  country.^^ 
Clandestine  conveyances  by  bargain  and  sale  being  thus  pre- 
vented by  the  Statute  of  Enrollments,  conveyancers,  soon 
after  the  statute,  devised  the  conveyance  by  "lease  and  re- 
lease," taking  advantage  of  the  fact  that  the  statute  required 
the  enrollment  of  bargains  and  sales  of  "freehold"  interests 
only.  This  conveyance,  as  before  explained,  consisted  of  a 
bargain  and  sale  of  a  leasehold  interest  to  the  intended  gran- 
tee, which  vested  him  with  the  legal  possession,  and  this  was 
folloAved  by  a  deed  of  release  of  the  reversion  remaining  in 
the  former  owner. ^^ 

§  377.     Conveyances  employed  in  the  United  States. 

In  most  of  the  states  of  this  country  there  are  statutory 
provisions  authorizing  the  transfer  of  land  by  simple  forms 

64  See  ante,  §  88. 

65  27  Hen.  VIII.  c.  16  (A.  D.  1535).     See  2  Sanders,  Uses  &  Trusts 
(5th  Ed.)    64. 

66  See  Givan  v.  Tout,  7  Blackf.    (Ind.)   210.     Marshall  v.  Fisk,  6 
Mass.  24,  4  Am.  Dec.  76. 

67  1  Hayes,  Conveyancing  (5th  Ed.)  76.     See  ante,  §  88. 

(859) 


§    377  REAL    PROPERTY.  [Ch.  19 

of  convejance,^^  which,  in  their  operation,  much  resemble 
the  common-law  "grant,"  except  that  thej  are  not  confined  to 
incorporeal  things.  The  same  purpose  of  simplification  of 
conveyancing  has  in  England  been  attained  by  a  statute  pro- 
viding that  all  corporeal  tenements  and  hereditaments  shall, 
as  regards  the  conveyance  of  the  immediate  freehold  thereof, 
be  deemed  to  lie  in  grant,  as  well  as  in  livery.^'' 

Conveyances  by  way  of  bargain  and  sale  have,  however, 
been  in  constant  use  in  this  country,^^  and,  even  in  states 
where  there  are  statutory  provisions  of  the  character  referred 
to,  the  words  "bargain  and  sell"  are  ordinarily  used  in  a 
conveyance.  In  such  states,  in  fact,  it  is  difficult,  and  for 
most,  if  not  all,  purposes,  unimportant,  to  say  whether  a 
particular  conveyance  operates  by  force  of  the  Statute  of 
Uses  or  under  the  local  statute.  In  order,  however,  that  a 
conveyance  be  regarded  as  taking  effect  by  way  of  bargain 
and  sale,  it  must,  as  was  before  stated,  be  supported  by  a  val- 
uable consideration.'^^ 

Conveyances  by  way  of  covenant  to  stand  seised  are  recog- 
nized in  this  country, '^^  but,  since  a  consideration  of  blood  or 
marriage  is  necessary, '^^  there  is  but  little  opportunity  for 

68  1  Stimson's  Am.  St.  Law,  §§  1480-1482. 

69  "Real-Property  Act,"  St.  8  &  9  Vict.  c.  106,  §  2  (A.  D.  184.5). 

70  See  Pascault  v.  Cochran  (C.  C.)  34  Fed.  358;  Givan  v.  Tout,  7 
Blackf.  (Ind.)  210;  Nelson  v.  Davis,  35  Ind.  474;  Chiles  v.  Conley's 
Heirs,  2  Dana  (Ky.)  21;  Sanders  v.  Hartzog,  6  Rich.  (S.  C.)  479; 
Holland  v.  Rogers,  33  Ark.  251. 

71  Corwin  v.  Corwin,  6  N.  Y.  342,  57  Am.  Dec.  453;  Wood  v. 
Chapin,  13  N.  Y.  509,  67  Am.  Dec.  62;  Lambert  v.  Smith,  9  Or.  185; 
Den  d.  Jackson  v.  Hampton,  30  N.  C.  457;  Gault  v.  Hall,  26  Me. 
561;  Boardman  v.  Dean,  34  Pa.  St.  252. 

72  Jackson  v.  Swart,  20  Johns.  (N.  Y.)  85;  Ward  v.  Wooten,  75  N. 
C.  413;  Sprague  v.  Woods,  4  Watts  &  S.  (Pa.)  192;  Fisher  v. 
Strickler,  10  Pa.  St.  348,  51  Am.  Dec.  488;  Watson  v.  Watson,  24 
S.  C.  228,  58  Am.  Rep.  247;  Barry  v.  Shelby,  4  Hayw.   (Tenn.)  229. 

73  Rollins  V.  Riley,  44  N.  H.  9;  Jackson  v.  Caldwell,  1  Cow.  (N. 
Y.)    622;    Gault  v.   Hall,   26   Me.    561;    Thompson   v.   Thompson,   17 

(860) 


C^j     19]  TRANSFER  INTER  VIVOS.  S  377 

their  employment.  Even  when  the  proper  consideration 
does  exist,  a  conveyance  in  form  under  the  local  statute,  or 
by  way  of  bargain  and  sale,  with  a  recital  of  a  pecuniary 
consideration,  would  usually  be  employed. 

Conveyances  by  lease  and  release  have  never  been  em- 
ployed to  any  extent  in  this  country,  since  the  Statute  of  En- 
rollments, which  constituted  the  reason  for  their  use  in  Eng- 
land, is  not  in  force  here. 

''Quitclaim  deeds." 


There  is,  in  this  country,  a  well-recognized  class  of  con- 
veyances, known  as  ''quitclaim  deeds,"  which  are  to  some  ex- 
tent a  development  of  the  common-law  release,  and  which 
have  acquired  their  name  from  one  of  the  words  ordinarily 
used  in  the  latter  instrument."'*  Such  a  conveyance  purports 
merely  to  convey  whatever  title  to  the  particular  land  the 
grantor  may  have,  and  its  use  excludes  any  implication  that 
he  has  a  good  title,  or  any  title  at  all.'^^  It  necessarily,  there- 
fore, contains  no  covenants  for  title,  and  its  employment  is, 
in  some  states,  regarded  as  in  itself  notice  to  the  purchaser 
of  possible  defects  in  the  title,  so  that  he  cannot  claim  to  oc- 
cupy the  position  of  a  bona  fide  purchaser.*^^     A  quitclaim, 

Ohio  St.  649;  Doe  d.  Cobb  v.  Hines,  44  N.  C.  343,  59  Am.  Dec.  559; 
2  Sanders,  Uses  &  Trusts  (5th  Ed.)  98.  Contra  in  Massachusetts. 
Trafton  v.  Hawes,  102  Mass.  533,  3  Am.  Rep.  494.     See  ante,  §  134. 

"*  See,  as  to  the  early  use  of  the  word  "quitclaim,"  2  Pollock  & 
Maitland,  Hist.  Eng.  Law,  91. 

75  City  &  County  of  San  Francisco  v.  Lawton,  18  CaL  465,  79  Am. 
Dec.  187;  Kerr  v.  Freeman,  33  Miss.  292;  Emmel  v.  Headlee  (Mo.) 
7  S.  W.  22;  Coe  v.  Persons  Unknown,  43  Me.  432;  Garrett  v.  Chris- 
topher, 74  Tex.  453,  15  Am.  St.  Rep.  850 

70  See  post,  §  482. 

Since  a  government  patent,  when  issued,  relates  back  to  the  date 
of  the  entry,  it  inures  to  the  benefit  of  one  to  whom  the  patentee 
has,  since  the  entry,  conveyed  the  land,  even  though  by  a  "quit- 
claim" purporting  to  convey  merely  such  title  as  he  has.  Crane  v. 
Salmon,  41  Cal.  63;  Welch  v.  Dutton,  79  111.  466;  Callahan  v.  Davis, 

(861) 


ft  378  REAL    PROPERTY.  [Ch.    19 

however,  is  sufficient  in  itself  to  pass  the  grantor's  existing 
title  to  the  same  extent  as  a  deed  of  grant  or  bargain  and 
sale/^  and  its  validity  is  not,  like  the  common-law  release, 
dependent  upon  the  existence  of  an  estate  or  interest  in  the 
grantee.'^*  The  question  whether  a  conveyance  is  a  mere 
quitclaim  is  determined  by  a  construction  of  the  instrument 
as  a  whole,  with  reference  to  the  circumstances  under  which 
it  was  given. ''^'^ 

§  378.     Conveyances  failing  to  take  effect  in  the  manner  in- 
tended. 

A  conveyance  which  is  intended  to  take  effect  as  a  certain 
class  of  conveyance,  if  not  valid  for  that  purpose,  will,  if 
possible,  be  construed  as  a  conveyance  of  another  character, 
in  order  that  it  may  take  effect.^^  This  important  rule  has 
been  applied  iii  numerous  connections.  For  instance,  a  con- 
veyance intended  to  take  effect  as  a  bargain  and  sale,  but 
which  is  void  as  such  for  want  of  a  pecuniary  consideration, 
will  take  effect  as  a  covenant  to  stand  seised,  if  a  considera- 

90  Mo.  78;  Landes  v.  Brant,  10  How.  (U.  S.)  372;  French's  Lessee 
V.  Spencer,  21  How.   (U.  S.)  228. 

77  Bradbury  v.  Davis,  5  Colo.  265;  Kyle  v.  Kavanagh,  103  Mass. 
356;  Grant  v.  Bennett,  96  111.  513;  Wilson  v.  Albert,  89  Mo.  537; 
Mclnerney  v.  Peck,  10  Wash.  515.  So  by  statute  in  some  states. 
See  Hoffman  v.  Harrington,  28  Mich.  90;  Kerr  v.  Freeman,  33  Miss. 
292. 

78  Spaulding  v.  Bradley,  79  Cal.  449;  Kerr  v.  Freeman,  33  Miss. 
292. 

79  See  United  States  v.  California  &  Oregon  Land  Co.,  148  U.  S. 
31;  Derrick  v.  Brown,  66  Ala.  162;  Reynolds  v.  Shaver,  59  Ark. 
299;  Wightman  v.  Spofford,  56  Iowa,  145;  Taylor  v.  Harrison,  47 
Tex.  454,  26  Am.  Rep.  304;  Cummings  v.  Dearborn,  56  Vt.  441; 
Morrison  v.  Wilson,  30  Cal.  344. 

80  Elphinstone,  Interpret,  of  Deeds,  40,  citing  the  numerous  Eng- 
lish cases.  Goodtitle  v.  Bailey,  Cowp.  600;  Roe  d.  Wilkinson  v. 
Tranmer,  Willes,  682,  1  Gray's  Cas.  494;  Foster's  Lessee  v.  Denni- 
son,  9  Ohio,  121;   Hunt  v.  Hunt,  14  Pick.   (Mass.)   374. 

(862) 


Ch.    19]  TRANSFER  INTER  VIVOS.  5^   379 

tion  of  blood  or  inaiTi;ii>e  exists  f^  and,  as  before  stated,  a 
conveyance  in  words  of  release,  void  as  such  for  want  of  an 
estate  or  possession  in  the  releasee,  will  be  supported  as  a 
conveyance  by  bargain  and  sale,  or  otherwise.^ ^  This  prin- 
ciple has  also  been  adopted  to  support  limitations  of  future 
estates  which  could  not  be  supported  unless  the  conveyance 
were  regarded  as  operating  under  the  Statute  of  Uses.*^ 

II.     Form  axd  Essentials  of  a  Conveyance. 

A  conveyance  must  identify  the  parties  thereto  and  the  land 
conveyed,  and  must  contain  words  showing  an  intention  that 
it  is  to  transfer  rights  in  the  land.  It  must  also  be  properly 
executed.  It  frequently,  moreover,  contains  words  limiting  the 
estate  to  be  taken  by  the  grantee;  and  may  likewise  contain 
a  reservation  creating  new  rights  in  the  land  in  favor  of  the 
grantor,  such  as  easements  or  rights  of  profit. 

No  consideration  is  necessary  to  the  validity  of  a  conveyance 
not  operating  under  the  Statute  of  Uses.  The  conveyance  may 
be  set  aside  if  induced  by  fraud  or  duress,  or,  in  some  cases, 
if  executed  under  a  mistake. 

§  379.     General  considerations. 

All  conveyances  of  freehold  or  leasehold  interest  in  lands, 
other  than  certain  leases  for  three  years  or  less,  must,  by  the 
Statute  of  Frauds,  be  in  writing.^*  In  most  if  not  all  the 
states  of  this  country  there  are  statutes  to  the  same  effect^^ 

81  Crossing  v.  Scudamore,  2  Lev.  9,  1  Mod.  175;  Horton  v.  Sledge, 
29  Ala.  478;  Bank  of  United  States  v.  Housman,  6  Paige  (N.  Y.) 
526;  Eckman  v.  Eckman,  68  Pa.  St.  460. 

82  See  ante,  note  33. 

83  Roe  d.  Wilkinson  v.  Tranmer,  2  Wils.  75,  Willes.  682,  1  Gray's 
Cas.  494;  Ward  v.  Wooten,  75  N.  C.  413;  Wall  v.  Wall,  30  Miss.  91, 
64  Am.  Dec.  147. 

84  29  Car.  II.  c.  3,  §§  1-3. 

85  1  Stimson's  Am.  St.  Law,  §§  1560,  4143. 

(863) 


§   379  REAL    PROPERTY.  [Qh     19 

These  statutes  do  not,  however,  as  before  stated,  interfere 
with  surrenders  by  operation  of  law.^^ 

At  common  law,  all  written  conveyances  of  land,  as  well 
as  most  other  written  instruments,  were  in  the  form  of  deeds, 
— that  is,  of  instruments  under  seal, — and  a  deed  was  either 
a  "deed  of  indenture"  or  a  "deed  poll."  A  deed  of  inden- 
ture was  a  deed  made  between  two  or  more  persons,  while  a 
deed  poll  was  made  by  one  person  only.^'^  These  terms  are 
thus  used  in  England  at  the  present  day,  and  they  are  occa- 
sionally so  used  in  this  country. 

A  carefully  drawn  conveyance  usually  consists  of  the  fol- 
lowing parts :  At  the  commencement  the  names  of  the  par- 
ties are  stated,*^  and  the  date  is  sometimes  here  given,  though 
it  is  frequently  placed  at  the  end.  Next  come  the  recitals, 
if  there  are  any,  these  being  statements  of  fact  explanatory  of 
the  transaction.  A  statement  of  the  consideration  and  of 
its  payment  and  receipt  then  follow,®^  and,  after  this,  the 
operative  words  of  conveyance,®^  with  a  description  of  the 
land  conveyed,®^  and  any  exception  therefrom.®^  The  parts 
thus  far  enumerated  constitute  what  is  known  as  "the  prem- 
ises." The  premises  are  followed  by  the  "habendum,"  which 
limits  the  estate  to  be  taken  by  the  grantee,  and  is  usually 

86  See  ante,  §  375. 

87  Co.  Litt.  229a.  The  word  "indenture"  originated  in  the  fact 
that  two  copies  of  the  deed  were  usually  written  on  the  same  piece 
of  parchment,  with  some  word  or  letters  written  between  them, 
through  which  the  parchment  was  cut  in  an  indented  or  waiving^ 
line.  The  words  "deed  poll"  refer  to  a  deed  "polled"  or  shaven  at 
the  top.  Subsequently,  conveyancers  adopted  the  practice,  which 
still,  it  seems,  prevails  in  England,  of  cutting  all  deeds  between 
two  or  more  parties  in  a  waving  line  at  the  top.  2  Bl.  Comm.  296; 
Williams,  Real  Prop.  (18th  Ed.)  150. 

88  Post,  §  380. 

89  Post,  §  384. 

90  Post,  §  381. 

91  Post,  §§  387-392. 

92  Post,  §  383. 

(864) 


C]l.    -[9]  TRANSFER  INTER  VIVOS.  §   380 

introduced  by  the  words  "to  have  and  to  hold."^^  Any  decla- 
ration of  trust  which  is  sought  to  be  made  is  here  inserted. 
The  "reddendum"  or  reservation^^  then  follows,  after  that  the 
statement  of  any  condition  or  power  affecting  the  grant,  and 
then  the  covenant  or  covenants  of  title.^^  The  conclusion 
usually  consists  of  a  formal  reference  to  the  execution,  and 
the  signatures  and  seals  of  the  parties  are  then  placed  bv  them 
at  the  foot  of  the  instrument.^ ^  There  is  also,  almost  in- 
variably, a  certificate  by  an  officer  that  the  conveyance  was 
acknowledged  by  the  grantors.^^ 

Though  a  well-dra^vn  conveyance  usually  contains  all  or 
most  of  these  parts  above  referred  to,  a  conveyance  contain- 
ing merely  the  names  of  the  parties  and  words  of  convey- 
ance, with  a  description  of  the  land,  if  duly  executed,  is  suf- 
ficient to  vest  at  least  an  estate  for  life  in  the  grantee.^* 

§  380.     Designation  of  the  parties. 

A  conveyance  should  designate  with  certainty  the  name  of 
the  grantor,  and  this  should  regularly  be  done  at  the  com- 
mencement. It  is  sufficient,  however,  if  the  name  as  given 
is  sufficient  to  enable  the  grantor  to  be  identified,  and  the 
fact  that  his  name  as  it  appears  in  the  instrument  differs 
from  his  actual  name,  or  from  the  name  signed  thereto,  does 
not  invalidate  the  conveyance.^'*    A  conveyance  by  the  "heirs" 

9"  Post  §  382. 

94  Post,  §  383. 

95  Post,  §§  394-401. 

96  Post,  §§  402,  403. 

97  Post,  §  405. 

98  Co.  Litt.  7a;  4  Kent's  Comm.  461. 

99  Comyn's  Dig.  "Fait"  (E  3);  Erskine  v.  Davis,  25  111.  251;  Nico- 
demus  v.  Young,  90  Iowa,  423;  Houx  v.  Batteen,  68  Mo.  84;  Rupert 
V.  Penner,  35  Neb.  587;  Jenkins  v.  Jenkins,  148  Pa.  St.  216;  Bierer 
V.  Fretz,  32  Kan.  329. 

(865) 
Real  Prop. — 55. 


g   2Si  REAL    PROPERTY.  [Ch.    19 

of  a  decedent  is  sufficient,  provided  such  heirs  can  be  iden- 
tified.i°« 

It  is  generally  held  that,  when  two  or  mor.e  persons  join 
in  the  execution  of  a  conveyance,  only  such  as  are  named  in 
the  body  of  the  instrument  will  be  regarded  as  parties  thereto. 
This  rule  has  usually  been  applied  in  the  cases  of  conveyances 
by  a  husband,  the  joinder  in  the  execution  of  which  by  the 
wife  has  been  held  to  be  insufficient  to  release  her  dower,  or 
otherwise  divest  her  rights  ;^^^  but  the  rule  is  applicable,  for 
even  stronger  reasons,  it  would  seem,  in  the  case  of  strangers 
joining  in  the  execution.^ ''^  The  same  necessity  that  the 
grantor  be  named  in  the  conveyance  does  not  exist,  it  would 
seem,  in  the  case  of  a  conveyance  executed  by  and  purporting 
to  be  the  act  of  one  person  only,  since  the  name  of  the  grantor 
is  put  in  "but  to  make  certainty  of  the  grantor,"^*^^  and  there 

100  Blaisdell  v.  Morse,  75  Me.  542. 

101  Payne  v.  Parker,  10  Me.  178,  25  Am.  Dec.  221;  Stevens  v. 
Owen,  25  Me.  94;  Lothrop  v.  Foster,  51  Me.  367;  Catlin  v.  Ware, 
9  Mass.  218,  6  Am.  Dec.  56,  3  Gray's  Gas.  621;  Leavitt  v.  Lamprey, 
13  Pick.  (Mass.)  382,  23  Am.  Dec.  685;  Greenough  v.  Turner,  11 
Gray  (Mass.)  334;  Prather  v.  McDowell,  8  Bush  (Ky.)  46;  Agri- 
cultural Bank  of  Mississippi  v.  Rice,  4  How.  (U.  S.)  225;  Batchelor  v. 
Brereton,  112  U.  S.  396;  Cox  v.  Wells,  7  Blackf.  (Ind.)  410,  43  Am. 
Dec.  98;  Merrill  v.  Nelson,  18  Minn.  366  (Gil.  335);  Stone  v.  Sledge, 
87  Tex.  49,  47  Am.  St.  Rep.  65;  Laughlin  v.  Fream,  14  W.  Va.  322; 
Harrison  v.  Simons,  55  Ala.  510.  Contra,  Armstrong  v.  Stovall,  26 
Miss.  275;  Johnson  v.  Montgomery,  51  111.  185;  Ingoldsby  v.  Juan,  12 
Cal.  564;  Elliot  v.  Sleeper,  2  N.  H.  525;  Woodward  v.  Leaver,  38  N.  H. 
29.  In  Burge  v.  Smith,  27  N.  H.  332,  a  release  of  dower  by  the  mere 
execution  by  the  wife  of  the  husband's  deed  is  upheld,  on  the 
ground  that,  in  that  state,  a  contrary  decision  would  overthrow 
many  titles,  but  that  this  holding  is  wrong  in  principle  is  strongly 
asserted. 

102  Harrison  v.  Simons,  55  Ala.  510.  See  Stone  v.  Sledge,  87  Tex. 
49,  47  Am.  St.  Rep.  65;  Batchelor  v.  Brereton,  112  U.  S.  396.  Contra, 
Hrouska  v.  Janke,  66  Wis.  252. 

103  Perkins,  §  36. 
(866) 


Ql^_  19""  TRANSFER  INTER  VIVOS.  §380 

can,  in  such  a  case,  be  no  question  that  the  person  executing 
the  conveyance  is  the  grantor  therein.^"'* 

The  grantee  or  grantees  must  be  named  in  the  conveyance, 
or  means  for  their  identification  furnished  thereby.^ *^''  A 
conveyance  to  a  deceased  person  is  invalid  ;^*^^  but  a  convey- 
ance to  the  heirs  of  one  deceased  is  sufficient,  since  their 
identity  can  be  determined.^ ""^  On  the  other  hand,  one  can- 
not convey  land  to  the  heirs  of  a  living  person,  since  they  are 
incapable  of  identification.^^^ 

Name  of  grantee  left  blank. 


At  the  common  law,  a  deed, — that  is,  an  instrument  under 
seal, — if  delivered  with  a  blank  therein  as  to  an  essential 
part,  is  void,  although  this  blank  be  afterwards  filled  by  one 
having  parol  authority  from  the  maker  of  the  deed  so  to  do ; 
this  being  based  on  the  theory  that  an  authority  to  make  an 
instrument  under  seal  must  itself  be  under  seal.^*^^     Apply- 

104  Elliot  V.  Sleeper,  2  N.  H.  525.  But  see,  to  the  contrary,  Pea- 
body  V.  Hewett,  52  Me.  33,  83  Am.  Dec.  486. 

So  it  would  seem  that  a  conveyance  in  the  first  person,  though 
not  naming  the  grantor,  if  signed  by  him,  would  be  sufficient  to 
divest  his  title.  Such  a  conveyance  was  upheld,  without  any  ques- 
tion as  to  this  particular  point,  in  Jackson  v.  Root,  18  Johns.  (N.  Y.) 
60;  Hutchins  v.  Carleton,  19  N.  H.  487. 

105  Wunderlin  v.  Cadogan,  50  Cal.  613;  Wood  v.  Boyd,  28  Ark.  75; 
Simmons  v.  Spratt,  20  Fla.  495;  Hardin  v.  Hardin,  32  S.  C.  599; 
Wright  V.  Lancaster,  48  Tex.  250;  Chase  v.  Palmer,  29  111.  306.  See, 
as  to  conveyance  to  one  under  assumed  name,  Thomas  v.  Wyatt,  31 
Mo.  188,  Finch's  Cas.  1075. 

106  Lewis  V.  McGee,  1  A.  K.  Marsh.  (Ky.)  199. 

107  Shaw  V.  Loud,  12  Mass.  447;  Hoover  v.  Malen,  83  Ind.  195; 
Boone  v.  Moore,  14  Mo.  421;  Gearheart  v.  Tharp,  9  B.  Mon.  (Ky.) 
31. 

108  Booker  v.  Tarwater,  138  Ind.  385;  Morris  v.  Stephens,  46  Pa. 
St.  200;  Hall  v.  Leonard,  1  Pick.  (Mass.)  27.  But  otherwise  if  the 
word  "heirs"  means  children.  Huss  v.  Stephens,  51  Pa.  St.  282; 
Tharp  v.  Yarbrough,  79  Ga.  382,  11  Am.  St.  Rep.  439. 

109  Sheppard's  Touchstone,  54;  Comyn's  Dig.  "Fait"  (A  1)  ;  Hib- 
blewhite  v.  McMorine,  6  Mees.  &  W.  200. 

(867) 


§   380  REAL    PROPERTY.  [Ch.    19 

ing  this  rule,  it  has  been  held,  in  a  number  of  states,  that  a 
conveyance  under  seal,  with  the  name  of  the  grantee  left 
blank,  is  invalid,  although  the  blank  is  afterwards  filled  up 
by  another  person  acting  under  a  parol  authority  from  the 
grantor.^^*^  In  other  states,  it  has  been  held,  without  refer- 
ence to  the  question  of  a  seal,  that  an  authority  to  insert  the 
grantee's  name  must  be  in  writing.-^^^  In  a  majority  of 
states,  however,  at  the  present  time,  the  name  of  the  gran- 
tee, if  left  blank,  may  be  inserted,  in  the  grantor's  absence, 
by  one  acting  under  oral  authority  from  him,  upon  the  ground 
of  the  technical  character  of  the  rule  to  the  contrary,  based, 
as  it  is,  on  the  sanctity  accorded  at  common  law  to  the  pres- 
ence of  a  seal.-^^^  But  even  under  this  view,  the  name  of 
the  grantee  must  be  inserted  before  the  delivery  of  the  con- 
veyance to  him, — that  is,  though  the  grantor  may  commit 
the  instrument  to  his  agent,  to  fill  in  the  blank  and  then  de- 
liver it,  one  to  whom  the  instrument  is  delivered  by  the  gran- 
tor cannot  insert  his  own  name  as  grantee,  though  this  is 
within  the  terms  of  his  authority.^ ^^ 

110  Ingram  v.  Little,  14  Ga.  173,  58  Am.  Dec.  549;  Preston  v.  Hull, 
23  Grat.  (Va.)  600;  Davenport  v.  Sleight,  19  N.  C.  381;  Burns  v. 
Lynde,  6  Allen  (Mass.)   305. 

111  Ay  res  v.  Probasco,  14  Kan.  175;  Adamson  v.  Hartman,  40  Ark. 
58;  Upton  v.  Archer,  41  Cal.  85,  10  Am.  Rep.  266.  See  Lindsley  v. 
Lamb,  34  Mich.  509. 

112  Swartz  V.  Ballou,  47  Iowa,  188,  29  Am.  Rep.  470;  Field  v. 
Stagg,  52  Mo.  534,  14  Am.  Rep.  435;  Cribben  v.  Deal,  21  Or.  211,  28 
Am.  St.  Rep.  746;  Threadgill  v.  Butler,  60  Tex.  599;  Inhabitants  of 
South  Berwick  v.  Huntress,  53  Me.  90;  Lafferty  v.  Lafferty,  42  W. 
Va.  783;  Schintz  v.  McManamy,  33  Wis.  299. 

But  when  the  instrument  must  be  executed  by  the  grantor,  and 
cannot  be  executed  through  an  agent,  as  in  some  states  is  the  case 
in  a  conveyance  by  a  married  woman,  blanks  in  the  conveyance 
cannot  be  tilled  by  a  third  person  acting  under  oral,  or  even  sealed, 
authority.     Drury  v.  Foster,  2  Wall.  (U.  S.)  24. 

113  See  Allen  v.  Withrow,  110  U.  S.  119;  McClung  v.  Steen  (C.  C.) 
32  Fed.  373;  Cribben  v.  Deal,  21  Or.  211,  28  Am.  St.  Rep.  746  (sem- 
ble) ;   Bell  v.  Kennedy,  100  Pa.  St.  215.     See  Chauncey  v.   Arnold, 

(868) 


CIj     19"]  TRANSFER  INTER  VIVOS.  Jj   381 

Even  though  the  sufSciency  of  nii  oral  authority  for  this 
purpose  be  denied,  it  is  generally  held  lliat,  as  against  a  gran- 
tee who  accepts  the  conveyance  with  his  name  appearing 
therein  in  its  proper  place,  and  who  does  not  know  of  its 
insertion  by  the  agent,  the  grantor  is  estopped  to  deny  the 
validity  of  the  conveyance.^  ^'^  Apart  from  such  cases  of 
estoppel,  and  without  reference  to  the  common-law  require- 
ment of  a  sealed  authority,  the  statutory  requirement  exist- 
ing in  some  states,  that  a  conveyance  be  signed  by  the  gran- 
tor, or  by  an  agent  authorized  in  writing,  would  apparently 
prevent  the  insertion  of  such  an  essential  part  of  the  con- 
veyance, after  its  execution,  by  a  person  acting  under  a  mere- 
ly oral  authority. 

§  381.     Words  of  conveyance. 

Though  particular  words  are  appropriate  to  particular 
classes  of  conveyances,  it  is  not  necessary  that  these  particu- 
lar technical  terms  be  used,  and  the  conveyance  is  valid,  pro- 
vided it  contains  any  words  signifying  an  intention  to  trans- 
fer the  land  or  the  grantor's  interest  therein.^  ^^  The  phrase 
"give,  grant,  bargain,  and  sell"  is  frequently  employed,  and 
is  no  doubt  sufficient  for  any  class  of  conveyance,  in  view  of 
the  rule  before  referred  to,  that  a  conveyance  will  be  upheld 
if  possible,  though  it  cannot  operate  as  intended.     It  is  nec- 

24  N.  Y.  330.  But  see,  to  the  contrary,  Threadgill  v.  Butler,  60 
Tex.  599. 

1"  Phelps  V.  Sullivan,  140  Mass.  36;  Pence  v.  Arbuckle,  22  Minn. 
417;  State  v.  Matthews,  44  Kan.  596;  Garland  v.  Wells,  15  Neb.  298; 
Quinn  v.  Brown,  71  Iowa,  376.  Contra,  Upton  v.  Archer,  41  Cal. 
85. 

113  Shove  V.  Pineke,  5  Term  R.  124;  San  Francisco  &  O.  R.  Co.  v. 
City  of  Oakland,  43  Cal.  502;  Gordon  v.  Haywood,  2  N.  H.  402; 
Hutchins  v.  Carleton,  19  N.  H.  487;  Jackson  v.  Root,  18  Johns.  (N. 
Y.)  60;  Lynch  v.  Livingston,  6  N.  Y.  422;  Folk  v.  Varn.  9  Rich.  Eq. 
(S.  C.)  303;  Howe  v.  Warnack,  4  Bibb  (Ky.)  234;  Evenson  v.  Web- 
ster, 3  S.  D.  382,  44  Am.  St.  Rep.  802. 

(8G9) 


«    382  REAL    PROPERTY.  [Ch.  19 

essarj,  however,  that  the  conveyance  contain  words  showing 
an  intention  to  transfer  the  grantor's  interest/^ ^  and  the 
words  ''sign  over"^^'^  and  "warrant  and  defend"  have  been 
held  to  be  insufficient.^ ^^ 

§  382.     The  habendum. 

The  purpose  of  the  habendum  is,  as  before  stated,  to  limit 
the  estate  to  be  taken  by  the  grantee.  In  its  construction,  in 
<3onnection  with  other  parts  of  the  conveyance,  the  purpose 
is,  of  course,  to  arrive  at  the  intention  of  the  parties,^ ^^  and, 
if  possible,  it  will  be  construed  so  as  to  harmonize  with  the 
premises,  thus  giving  effect  to  both.^^*^ 

In  the  case  of  a  clear  repugnancy  between  the  premises 
and  the  habendum,  the  premises  will  prevail  to  the  extent 
that  an  estate  created  in  the  granting  clause  cannot  be  cut 
•down  or  invalidated  by  limitations  in  the  habendum.^ "^  If 
the  estate  limited  in  the  habendum,  however,  is  greater  than 

116  Webb  V.  Mullins,  78  Ala.  Ill;  Bell  v.  McDuffie,  71  Ga.  264; 
Brown  v.  Manter,  21  N.  H.  528,  53  Am.  Dec.  223. 

117  McKinney  v.  Settles,  31  Mo.  541,  Finch's  Gas.  1080. 

118  Hummelman  v.  Mounts,  87  Ind.  178. 

ii9Higgins  V.  Wasgatt,  34  Me.  305;  Ratliffe  v.  Marrs,  87  Ky.  26; 
Barnett  v.  Barnett,  104  Gal.  298;  Smith  v.  Smith,  71  Mich.  633. 

i20Co.  Litt.  183b;  Edwards  v.  Beall,  75  Ind.  401;  Warn  v.  Brown, 
102  Pa.  St.  347. 

121  Go.  Litt.  299a;  2  Sanders,  Uses  &  Trusts,  155;  Ghallis,  Real 
Prop.  333;  Boddington  v.  Robinson,  L.  R.  10  Bxch.  270;  Robinson 
V.  Payne,  58  Miss.  690;  Adams  v.  Dunklee,  19  Vt.  382;  Smith  v. 
Smith,  71  Mich.  633;  Fowler  v.  Black,  136  111.  363;  Ratliffe  v.  Marrs, 
87  Ky.  26 ;  Winter  v.  Gorsuch,  51  Md.  180.  Contra,  Higgins  v.  Was- 
gatt, 34  Me.  305,  in  which  a  contrary  intention  was  inferred,  "taking 
the  whole  instrument  into  consideration."  Gompare  Berridge  v. 
Olassey,  112  Pa.  St.  442,  56  Am.  Rep.  322. 

But  the  limitations  in  the  habendum  will  control  if  there  is  in 
the  premises  an  express  reference  to  the  "limitations  hereinafter 
set  forth,"  or  similar  expressions.     Tyler  v.  Moore,  42  Pa.  St.  374. 

Although  the  grant  in  the  premises  be  to  A.  and  his  "heirs,"  the 
habendum  may  show  that  a  fee  tail  only  is  created,  this  being  re- 
garded, not  as  abridging  the  estate  granted,  but  as  merely  a  quali- 

(870) 


(^jj.  19]  TRANSFER  INTER  VIVOS.  §   382 

that  named  in  the  premises,  the  habendum  will  prevail.^  ^'^ 
So,  an  estate  granted  to  A.  for  life  may,  by  the  habendum, 
be  enlarged  to  a  fee  simple. 

If  there  is  no  express  limitation  of  an  estate  in  the  prem- 
ises, the  gi-ant  being  simply  to  A.,  the  habendum  may  deter- 
mine the  quantum  of  the  estate  granted.  Thus,  at  common 
law,  though  such  a  grant  without  words  of  limitation  creates 
an  estate  for  life  only  in  the  grantee,  it  may  be  shown,  by 
the  habendum,  that  an  estate  in  fee  or  for  years  is  intend- 
ed ;^-^  and  where,  under  the  modern  statutes  in  force  in 
many  states,^ -^  a  grant  to  A.  creates  a  fee  simple,  or  passes 
whatever  estate  the  grantor  may  have,  the  habendum  may 
show  that  an  estate  for  life  only  is  intended  to  be  con- 
veyed.^-^ 

The  fact  that  the  habendum  mentions  as  grantees  not  only 
the  person  or  persons  named  in  the  premises,  but  also  an- 
other person,  does  not  make  this  latter  person  a  joint  grantee 

fication  of  the  word  "heirs"  as  first  used.  Co.  Litt.  21a;  Challis, 
Real  Prop.  335;  Turnman  v.  Cooper,  Cro.  Jac.  476;  Altham's  Case,  8 
Coke,  154b.  To  the  same  effect,  see  Hunter  v.  Patterson,  142  Mo. 
310.  A  conveyance  to  A.  and  the  heirs  of  his  body,  habendum  to 
him  and  his  heirs  forever,  gives  A.  an  estate  tail,  probably  with  a 
fee  simple  expectant.  Co.  Litt.  21a  and  Hargrave's  note;  Corbin  v. 
Healy,  20  Pick.   (Mass.)   514;  Challis,  Real  Prop.  335. 

122  Co.  Litt.  21ar  299a;  2  Sanders,  Uses  &  Trusts  (5th  Ed.)  156; 
Elphinstone,  Interpret,  of  Deeds,  218;  Goodtitle  v.  Gibbs,  5  Bam. 
&  C.  709. 

123  Co.  Litt.  183a;  Altham's  Case,  8  Coke,  154b;  Challis,  Real 
Prop.  334;  Berry  v.  Billings,  44  Me.  416,  69  Am.  Dec.  107;  McLeod 
V.  Tarrant,  39  S.  C.  271;  Havens  v.  Sea  Shore  Land  Co.,  47  N.  J.  Eq. 
365,  Finch's  Cas.  926;  Phillips  v.  Thompson,  73  N.  C.  543. 

124  See  ante,  20. 

125  Montgomery  v.  Sturdivant,  41  Cal.  290;  Bodine's  Adm'rs  v. 
Arthur,  91  Ky.  53,  34  Am.  St.  Rep.  162;  Riggin  v.  Love,  72  111.  553; 
Kelly  V.  Hill  (Md.)  25  Atl.  919;  Doren  v.  Gillum,  136  Ind.  134; 
Baskett  v.  Sellars,  93  Ky.  2. 

(871) 


§  383  REAL   PROPERTY.  [Ch.  19 

with  the  others,  though  it  may  enable  him  to  take  by  way 
of  remainder.^^^ 

§  383.     Exceptions  and  reservations. 

The  purpose  and  effect  of  an  exception  in  a  conveyance  is 
to  except  or  exclude  from  the  operation  of  the  conveyance 
some  part  of  the  thing  or  things  covered  by  the  general  words 
of  description  therein,  as  when  one  conveys  a  piece  of  land, 
excepting  a  certain  part  thereof,  or  the  houses  thereon,  it 
being  always  of  a  thing  actually  existent.-^ ^^  A  reservation, 
on  the  contrary,  as  defined  by  the  common-law  writers,  is  a 
clause  by  which  the  grantor  reserves  to  himself  some  new 
thing  "issuing  out  of"  the  thing  granted,  and  not  in  esse  be- 
fore. At  common  law,  the  term  is  applicable  only  to  the 
reservation  of  a  rent  or  some  other  service  of  a  feudal  na- 
ture.^ ^^ 

An  exception  must  be  of  part  of  the  thing  granted,-^^^  and 
must  not  be  as  extensive  as  such  thing,  so  as  to  be  repugnant 
thereto.^ ^°  Nor  is  it  valid  if  it  was  previously  specifically 
granted,  as  when,  after  granting  twenty  houses,  one  of  such 

126  Elphinstone,  Interpret,  of  Deeds,  214;  Samme's  Case,  13  Coke, 
54;  Sheppard's  Touchstone  (Preston's  Ed.)  237;  Blair  v.  Osborne, 
84  N.  C.  417;  Moore  v.  City  of  Waco,  85  Tex.  206.  See  Hafner  v. 
Irwin,  20  N.  C.  433,  34  Am.  Dee.  390.  Contra,  McLeod  v.  Tarrant, 
39  S.  C.  271. 

127  Co.  Litt.  21a;  Sheppard's  Touchstone,  77  et  seq.;  Washington 
Mills  Emery  Mfg.  Co.  v.  Commercial  Fire  Ins.  Co.  (C.  C.)  13  Fed. 
646.  See  Brown  v.  Allen,  43  Me.  590;  King  v.  Wells,  94  N.  C.  344; 
Woodcock  V.  Estey,  43  Vt.  515;  Truett  v.  Adams,  66  Cal.  218. 

128  Co.  Litt.  47a;  Sheppard's  Touchstone,  80;  Doe  d.  Douglas  v. 
Lock,  2  Adol.  &  E.  743;  Durham  &  S.  Ry.  Co.  v.  Walker,  2  Q.  B. 
940. 

129  Sheppard's  Touchstone,  78;  Moore  v.  Lord,  50  Miss.  229;  Cor- 
nell V.  Todd,  2  Denio  (N.  Y.)   130. 

130  Dorrell  v.  Collins,  Cro.  Eliz.  6;  Shoenberger  v.  Lyon,  7  Watts 
&  S.  (Pa.)  184;  Young's  Petition,  11  R.  I.  636.  Compare  Foster  v. 
Runk,  109  Pa.  St.  291,  58  Am.  Rep.  720;  Adams  v.  Warner,  23  Vt. 
395. 

(872) 


Ci^_   19  ]  TRANSFER  INTER  VIVOS.  §   383- 

houses  is  sought  to  be  excepted.^^^  The  part  excepted  must 
be  described  with  such  certainty  that  it  may  be  identified, 
or  the  exception  is  void.^^^  There  may  be  an  exception,  not 
only  of  a  particular  piece  of  land  measured  horizontally,  but 
also  of  houses  or  other  fixtures  on  the  land  conveyed,^ ^^  or 
of  timber  growing  thereon,^  ^'^  or  of  minerals  therein.^ ^^ 

Since  an  exception  is  in  effect  merely  a  part  of  the  descrip- 
tion of  the  thing  granted,  the  subject  of  the  exception  re- 
mains in  the  grantor,  as  before  the  conveyance,  and  no  words 
of  inheritance  or  other  words  of  limitation  are  necessary  in 
order  that  the  grantor  may  retain  the  same  estate  in  the  thing 
excepted  as  he  had  before.  A  reservation,  on  the  other  hand, 
since  it  creates  a  thing  not  before  in  esse,  must  contain  words 
of  inheritance,  in  jurisdictions  where  the  common-law  rule 
has  not  been  changed  by  statute.^  ^^  An  exception,  from  its 
nature,  always  operates  in  favor  of  the  grantor,  and  a  reserva- 
tion likewise,  it  has  long  been  settled,  cannot  operate  in  favor 

131  Sheppard's  Touchstone  (Preston's  Ed.)  78;  4  Kent's  Comm. 
468. 

i32Mooney  v.  Cooledge,  30  Ark.  640;   Andrews  v.  Todd,  50  N.  H. 

565;    Den   d.    Waugh  v.    Richardson,   30   N.   C.    470;    Stambaugh   v. 

Hollabaugh,  10  Serg.  &  R.    (Pa.)    357;    Butcher  v.  Creel's  Heirs,  9 

Grat.  (Va.)  201. 

133  Washington  Mills  Emery  Mfg.  Co.  v.  Commercial  Fire  Ins.  Co. 
(C.  C.)  13  Fed.  646;  Sanborn  v.  Hoyt,  24  Me.  118.     See  ante.  §  236. 

134  Sheppard's  Touchstone,  78;  Heflin  v.  Bingham,  56  Ala.  566,  28 
Am.  Rep.  776;  Howard  v.  Lincoln,  13  Me.  122;  Putnam  v.  Tuttle,  10 
Gray  (Mass.)  48. 

135  Snoddy  v.  Bolen,  122  Mo.  479;  Sloan  v.  Lawrence  Furnace  Co., 

29  Ohio  St.  568;  Whitaker  v.  Brown,  46  Pa.  St.  197. 

136  Co.  Litt.  47a,  215b;   Ashcroft  v.  Eastern  R.  Co.,  126  Mass.  196, 

30  Am.  Rep.  672,  3  Gray's  Cas.  587;  Whitaker  v.  Brown,  46  Pa.  St. 
197;  Emerson  v.  Mooney,  50  N.  H.  318,  3  Gray's  Cas.  579;  Smith  v. 
Ladd,  41  Me.  314.  See  Keeler  v.  Wood,  30  Vt.  242.  In  some  of  the 
earlier  Massachusetts  cases  there  are  erroneous  statements  that 
words  of  inheritance  are  necessary  in  the  case  of  an  exception.  Cur- 
tis V.  Gardner,  13  Mete.  (Mass.)  457,  3  Gray's  Cas.  548;  Jamaica 
Pond  Aqueduct  Corp.  v.  Chandler,  9  Allen  (Mass.)   159,  170. 

(873) 


§   383  REAL    PROPERTY.  [Ch.   19 

of  a  person  otlier  than  tke  grantor,^ ^^  this  rule  being  presum- 
ably due  to  the  feudal  origin  and  purpose  of  a  reservation, 
as  formerly  understood. 

Such  being  the  natures  of  an  exception  and  a  reservation 
at  common  law,  neither  was  appropriate  for  the  creation,  on 
the  conveyance  of  land,  of  an  easement  or  right  of  profit  in 
the  land  in  favor  of  the  grantor,  and,  accordingly,  the  Eng- 
lish courts  have  decided  that  such  an  attempted  exception  or 
reservation  must  be  construed  as  a  grant  back  of  an  easement 
by  the  grantee  of  the  land.^^^  In  this  country,  however,  an 
entirely  different  view  has  been  taken,  and  an  easement  is 
invariably  regarded  as  the  proper  subject  of  a  reservation,^ ^^ 
and  sometimes  even  of  an  exception.  ^^*^ 

The  adoption  in  this  country  of  the  rule  that  a  right  of 
use  or  profit  may  be  thus  created  by  a  reservation  seems  not 
to  involve  a  great  extension  of  the  common-law  principle  that 
a  reservation  is  proper  for  the  creation  of  a  new  right  not  be- 
fore existent,  and  such  a  rule  is  rendered  almost  a  necessity  by 
the  fact  that  here  the  conveyance  is  usually  executed  by  the 

137  sheppard's  Touchstone,  80;  Ives  v.  Van  Auken,  34  Barb.  (N. 
Y.)  566;  Young's  Petition,  11  R.  I.  636;  Strasson  v.  Montgomery,  32 
Wis.  52;  Herbert  v.  Pue,  72  Md.  307;  Hornbeclt  v.  Westbrook,  9 
Johns.  (N.  Y.)  73;  Murphy  v.  Lee,  144  Mass.  371;  Bridger  v.  Pier- 
son,  45  N.  Y.  601;  Hill  v.  Lord,  48  Me.  83.  But  see  Hodge  v.  Booth- 
by,  48  Me.  68. 

But  in  England,  where  the  reservation  of  an  easement  takes  ef- 
fect as  a  re-grant,  an  easement  may  be  created  in  favor  of  one  not 
a  party  to  the  conveyance,  if  the  conveyance  is  executed  by  the 
grantee.     Wickham  v.  Hawker,  7  Mees.  &  W.  63. 

138  Ante,  §  316. 

i39Chappell  V.  New  York,  N.  H.  &  H.  R.  Co.,  62  Conn.  195;  Hag 
gerty  v.  Lee,  50  N.  J.  Eq.  464;  Claflin  v.  Boston  &  A.  R.  Co.,  157 
Mass.  489;  Grafton  v.  Moir,  130  N.  Y.  465,  27  Am.  St.  Rep.  533; 
Kister  v.  Reeser,  98  Pa.  St.  1,  42  Am.  Rep.  608.  And  see  cases  in 
notes  140-144. 

lio  Inhabitants  of  Winthrop  v.  Fairbanks,  41  Me.  307,  3  Gray's  Cas. 
562;  Ring  v.  Walker.  87  Me.  550;  Claflin  v.  Boston  &  A.  R.  Co.,  157 
Mass.  489. 
(874) 


^1^     l<)j  TRANSFER  INTER  VIVOS.  $j    .;y3 

grantor  alone,  so  that  the  effect  of  viewing  the  reservation 
as  a  grant  back,  as  is  done  bj  the  courts  in  England,  where 
the  grantee  almost  invariably  executes  the  instrument,  would 
usually  be  to  render  such  a  stipulation  entirely  invalid.  It 
is  perhaps  unfortunate,  however,  that  an  exception,  the  ])rop- 
er  function  of  which  is  to  particularize  the  description  of  the 
corporeal  thing,  an  estate  in  which  is  conveyed,  should  be 
utilized  for  the  entirely  different  purpose  of  creating  an  in- 
corporeal thing.  Some  of  the  courts  have  adopted  an  in- 
genious distinction  between  a  stipulation  in  favor  of  the  gran- 
tor for  an  easement  corresponding  to  a  quasi  easement,  al- 
ready existing,  and  one  for  an  easement  not  corresponding 
to  a  pre-existing  quasi  easement;  holding  that  the  former  is 
properly  an  exception,  as  being  of  a  thing  actually  existent, 
while  the  latter  is  a  reservation,  as  being  of  something  not 
before  existent.^  ^^ 

In  construing  conveyances  thus  creating,  or  attempting 
to  create,  rights  in  the  land  granted  in  favor  of  the  grantor, 
the  courts  ignore  the  terms  used,  such  as  "except"  and  "re- 
serve," and  construe  the  language  as  an  exception  or  a  reserva- 
tion, according  to  the  nature  of  the  rights  sought  to  be  cre- 
.ated.1^2 

141  White  V.  New  York  &  N.  E.  R.  Co.,  156  Mass.  181 ;  Claflin  v. 
Boston  &  A.  R.  Co.,  157  Mass.  489;  Simpson  v.  Boston  &  M.  R.  R.,  176 
Mass.  359;  Bridger  v.  Pierson,  45  N.  Y.  601.  See  Chappell  v.  New 
York,  N.  H.  &  H.  R.  Co.,  62  Conn.  195. 

This  distinction  seems  somewhat  artificial,  since  a  quasi  ease- 
ment consists  merely  in  the  exercise  of  a  right  of  user  incident  to 
the  ownership  of  land,  which  may  sometimes  have  certain  results 
as  raising  an  implication  of  a  grant  (see  ante,  §  317),  but  which 
does  not  in  itself  constitute  a  right  recognized  by  the  law,  and  there 
is  as  much  a  creation  of  a  new  and  distinct  legal  right  by  the  "ex- 
ception" of  an  easement  corresponding  to  such  quasi  easement  as 
in  the  case  of  a  "reservation"  of  a  right  of  use  or  profit  not  before 
exercised. 

142  state  V.  Wilson,  42  Me.  9;  Engel  v.  Ayer,  85  Me.  453;  Sloan  v. 
Lawrence  Furnace  Co.,  29  Ohio  St.  568;   Whitaker  v.  Brown,  46  Pa. 

(875) 


I   384  REAL    PROPERTY.  [Ch.  19 

In  some  of  the  states  in  which  the  word  "heirs"  is  still 
necessary  to  create  an  estate  in  fee,  the  question  whether  the 
language  of  the  conveyance  is  to  be  construed  as  an  exception 
or  a  reservation  may  have  important  results  in  determining 
whether  the  grantor  has  an  easement  in  fee  or  for  life  only.^^^ 
In  others  of  such  states,  however,  the  courts  have  refused  to 
apply  the  requirement  of  words  of  inheritance  to  the  case 
of  such  a  reservation  of  an  easement,  it  being  considered  that, 
if  this  is  evidently  intended  to  be  for  the  benefit  of  land  re- 
tained by  the  grantor,  he  will  have  an  easement  of  like  dura- 
tion with  his  estate  in  such  land.^^^ 

§  384.     Consideration. 

A  conveyance  is  not,  properly  speaking,  a  contract,  though 
it  is  the  result  of  agreement,  and  a  consideration  is  not  neces- 
sary to  its  validity,  as  in  the  case  of  a  contract,  except  when 
the  conveyance  is  one  operating  under  the  Statute  of  Uses.^^'^ 

St.  197;  White  v.  New  York  &  N.  E.  R.  Co.,  156  Mass.  181;  Coal 
Creek  Min.  Co.  v.  Heck,  15  Lea  (Tenn.)  497;  Watkins  v.  Tucker,. 
84  Tex.  428;  Hagerty  v.  Lee,  54  N.  J.  Law,  580. 

So,  in  construing  a  conveyance  which  seeks  to  create  in  favor 
of  the  grantor  certain  rights  in  a  part  of  the  land  granted,  the 
words  will  be  regarded  as  an  exception  or  reservation,  according  as 
an  easement  in  such  part  is  sought  to  be  created,  or  the  ownership 
of  such  part  is  retained.  Elliot  v.  Small,  35  Minn.  396,  59  Am.  Rep. 
329;  Kister  v.  Reeser,  98  Pa.  St.  1,  42  Am.  Rep.  608;  Jones  v.  De 
Lassus,  84  Mo.  541. 

143  White  v.  New  York  &  N.  E.  R.  Co.,  156  Mass.  181;  Claflin  v. 
Boston  &  A.  R.  Co.,  157  Mass.  489;  Simpson  v.  Boston  &  M.  R.  R.,  176 
Mass.  359;  Inhabitants  of  Winthrop  v.  Fairbanks,  41  Me.  307,  3 
Gray's  Cas.  562;  Ring  v.  Walker,  87  Me.  550.  This  views  seems  to 
have  had  weight  in  inducing  the  courts  to  construe  such  stipulations 
as  exceptions,  rather  than  as  reservations. 

1*4  Kennedy  v.  Scovil,  12  Conn.  326;  Chappell  v.  New  York  &  N.  H. 
R.  Co.,  62  Conn.  195;  Lathrop  v.  Eisner,  93  Mich.  599. 

145  4  Kent's  Comm.  462;  Thompson  v.  Thompson,  9  Ind.  323,  68 
Am.  Dec.  638;  Laberee  v.  Carleton,  53  Me.  211;  Gale  v.  Gould,  40 
Mich.  515;  Beal  v.  Warren,  2  Gray  (Mass.)  447;  Campbell  v.  Whit- 

(8Y6) 


^h.   19]  TRANSFER  INTER  VIVOS.  §  384 

In  other  words,  the  owner  of  land  has  the  same  right  to  make 
a  gift  thereof  to  another  person  as  he  has  to  sell  it,  and  the 
only  persons  who  can  qnestion  the  validity  of  the  convey- 
ance for  want  of  consideration  are  creditors  who  may  thereby 
lose  the  means  of  satisfying  their  demands.^ '*^  The  absence 
of  consideration  may  also  deprive  the  grantee  of  the  right  to 
claim  the  position  of  a  purchaser  for  value  as  against  the 
adverse  rights  of  third  persons  subsequently  accruing.^ "*^ 

Ordinarily  in  a  conveyance,  a  consideration,  frequently  a 
nominal  sum  merely,  is  named,  and  the  receipt  thereof  is 
expressly  acknowledged.  The  purpose  of  inserting  this  clause 
in  the  conveyance  is  to  rebut  any  implication  of  a  resulting 
use  or  trust  in  favor  of  the  grantor,^ ''^  and  likewise  to  fur- 
nish support  for  the  conveyance  as  a  bargain  and  sale.^^''' 
Such  an  acknowledgment  of  the  receipt  of  the  consideration 
is  conclusive  upon  the  parties  as  to  the  fact  that  a  considera- 
tion was  paid,  for  the  purpose  of  supporting  the  conveyance, 
and  vesting  a  beneficial  interest  in  the  grantee.^  ^"  It  is  not, 
however,  conclusive  upon  the  parties  or  upon  third  persons 
as  regards  the  amount  of  the  consideration.^ ^^     And  the  ab- 

son,  68  111.  240,  18  Am.  Rep.  553;  Lancaster  v.  Dolan,  1  Rawle  (Pa.) 
231,  18  Am.  Dec.  625;  Brown  v.  Brown,  44  S.  C.  378;  Goodwin  v. 
White,  59  Md.  503. 

146  See  post,  §  495. 

147  See  post,  §  483. 

148  See  Meeker  v.  Meeker,  16  Conn.  383;  Feeney  v.  Howard,  79 
Cal.  525,  12  Am.  St.  Rep.  162;  Acker  v.  Priest,  92  Iowa,  610;  Groff 
V.  Rohrer,  35  Md.  327;  Gould  v.  Lynde,  114  Mass.  366;  Moore  v. 
Jordan,  65  Miss.  229,  7  Am.  St.  Rep.  641;  2  Story,  Eq.  Jur.  §  1199. 

149  See  ante,  §  376. 

isoRuss  V.  Mebius,  16  Cal.  350;  Kimball  v.  Walker,  30  111.  482, 
511;  Goodspeed  v.  Fuller,  46  Me.  141;  Finlayson  v.  Finlayson,  17 
Or.  347,  11  Am.  St.  Rep.  836;  Acker  v.  Priest,  92  Iowa,  610;  McCrea 
V.  Purmort,  16  Wend.  (N.  Y.)  460,  30  Am.  Dec.  103;  Beavers  v.  Mc- 
Kinley,  50  Kan.  602;  2  Pomeroy,  Eq.  Jur.  §  1036. 

i^'i  Goodspeed  v.  Fuller,  46  Me.  141;  Byers  v.  Locke,  93  Cal.  493. 
27  Am.  St.  Rep.  212;  Michael  v.  Foil,  100  N.  C.  178,  6  Am.  St.  Rep. 

(877) 


g  385  REAL    PROPERTY.  [Ch.    19 

sence  of  such  a  recital  does  not  affect  the  right  of  the  gran- 
tee to  show  its  payment  for  the  purpose  of  supporting  the 
conveyance.^  ^^ 

§  385.     Reality  of  consent. 

While  a  conveyance  is  presumed  to  have  been  made  with 
the  free  consent  of  the  parties  thereto,  it  may,  in  certain  cases,^ 
be  shown  that  such  consent  was  wanting.  The  want  of  con- 
sent may  arise  from  mistake  on  the  part  of  the  parties  as  to 
a  material  fact  concerning  the  subject-matter  of  the  contract, 
as  when  the  quantity  of  land  embraced  in  the  description  is 
materially  different  from  that  which  the  parties  supposed  it 
to  include,  and  with  reference  to  which  the  price  was  fixed. ^^^ 
And  the  fact  that  the  parties  failed  to  agree  as  to  the  land 
to  be  conveyed,  though  supposing  that  they  did  so,  is  also 
ground  for  rescission  of  the  conveyance.^  ^*  A  mistake  in  the 
preparation  of  the  conveyance,  as  when  it  purports  to  convey 
land  other  than  that  which  it  was  agreed  should  be  conveyed,, 
or  when  the  land  as  described  differs  from  that  sold,  is  ground 
for  reformation  of  the  conveyance.-^  ^^      So,  a  mistake  in  the 

577;  Kimball  v.  Walker,  30  111.  482,  511;  Bolles  v.  Sachs,  37  Minn. 
318;  Hebbard  v.  Haughian,  70  N.  f.  54;  Kicldand  v.  Menasha  Wood- 
en Ware  Co.,  68  Wis.  34,  60  Am.  Rep.  831;  McCrea  v.  Purmort,  16 
Wend.  (N.  Y.)  460,  30  Am.  Dec.  103;  Wilkinson  v.  Scott,  17  Mass. 
249. 

i52Lowry  v.  Howard,  35  Ind.  170,  9  Am.  Rep.  676;  Boynton  v. 
Rees,  8  Pick.  (Mass.)  329,  19  Am.  Dec.  326;  Jackson  v.  Dillon'& 
Lessee,  2  Overt.  (Tenn.)  261;  Den  d.  Springs  v.  Hanks,  27  N.  C.  30; 
Sprague  v.  Woods,  4  Watts  &  S.  (Pa.)  192;  Wood  v.  Uhapin,  13 
N.  Y.  509,  67  Am.  Dec.  62;  Underwood  v.  Campbell,  14  N.  H.  393. 

153  0'Connell  v.  Duke,  29  Tex.  299,  94  Am.  Dec.  282;  Hansford  v. 
Chesapeake  Coal  Co.,  22  W.  Va.  70;  Miller  v.  Craig,  83  Ky.  623,  4 
Am.  St.  Rep.  179;  Folsom  v.  Howell,  94  Ga.  112;  Read's  Adm'rs  v. 
Cramer,  2  N.  J.  Eq.  277,  34  Am.  Dec.  204. 

i54Barfield  v.  Price,  40  Cal.  535;  Hodges  v.  Horsfall,  1  Russ.  &  M. 
116;  Harris  v.  Pepperell,  L.  R.  5  Eq.  1. 

155  Blair  v.  McDonnell,  5  N.  J.  Eq.  327;   Baxter  v.  Tanner,  35  W, 

(878) 


Q^^   19  j  TRANSFER  INTER  VIVOS.  §   385 

words  in  the  couvejance  limiting  the  interest  in  the  land 
which  it  was  agreed  should  be  conveyed  may  be  corrected,  as 
when  there  is  an  omission  of  words  of  inheritance.^^®  Relief 
will  also  frequently  be  given  when  the  legal  nature  and  ef- 
fect of  the  conveyance  as  written  does  not  correspond  with 
the  agreement  of  the  parties,  in  accordance  with  which  it  is 
made.^^'^ 

The  want  of  consent  may  also  arise  from  the  fact  that  the 
conveyance  was  procured  by  fraudulent  representations,^  ^^  or 
by  duress,^  ^^  or  undue  influence,-' ®° 

Va.  60;  Barth  v.  Deuel,  11  Colo.  494;  Felton  v.  Leigh,  48  Ark.  498; 
Baker  v.  Pyatt,  108  Ind.  61;  Parker  v.  Benjamin,  53  111.  255;  Stevens 
V.  Holman,  112  Cal.  345,  53  Am.  St.  Rep.  216. 

156  Chamberlain  v.  Thompson,  10  Conn.  243,  26  Am.  Dec.  390;  Mc- 
Millan V.  Fish,  29  N.  J.  Eq.  610;  Brock  v.  O'Dell,  44  S.  C.  22;  Lard- 
ner  v.  Williams,  98  Wis.  514.  See  Benson  v.  Markoe,  37  Minn.  30, 
5  Am.  St.  Rep.  816. 

157  Paget  V.  Marshall,  28  Ch.  Div.  255;  Gruing  v.  Richards,  23 
Iowa,  288;  Kerr  v.  Couper,  5  Del.  Ch.  507;  Sparks  v.  Pittman,  51 
Miss.  511;  Foster  v.  Mackinnon,  L.  R.  4  C.  P.  704;  In  re  Garnett,  31 
Ch.  Div.  648,  33  Ch.  Div.  300;  Thoroughgood's  Case,  2  Coke,  9a; 
Pollock,  Contracts  (6th  Ed.)  443;  Benson  v.  Markoe,  37  Minn.  30, 
5  Am.  St.  Rep.  816;  Canedy  v.  Marcy,  13  Gray  (Mass.)  373. 

158  Blackburn  v.  Wooding,  6  C.  C.  A.  6,  56  Fed.  545;  Castle  v. 
Kemp,  124  111.  307;  Carver  v.  Carver,  97  Ind.  497;  Berry  v.  Whitney, 
40  Mich.  65;  Mortland  v.  Mortland,  151  Pa.  St.  593;  Matlack  v. 
Shaffer,  51  Kan.  208,  37  Am.  St.  Rep.  270;  Ruffner  v.  Ridley,  81 
Ky.  165. 

i59Harshaw  v.  Dobson,  67  N.  C.  203;  Eadie  v.  Slimmon,  26  N.  Y. 
12;  Gohegan  v.  Leach,  24  Iowa,  509;  Tapley  v.  Tapley,  10  Minn.  448 
(Gil.  360),  88  Am.  Dec.  76;  Muller  v.  Buyck,  12  Mont.  354;  Ko- 
courek  v.  Marak,  54  Tex.  201,  38  Am.  Rep.  623.  See  Rendleman  v 
Rendleman,  156  111.  568. 

ICO  Ross  V.  Conway,  92  Cal.  632;  Chase  v.  Hubbard,  153  Mass.  91 
Caspari   v.   First  German   Church  of  New   Jerusalem,    82   Mo.    649 
Graham  v.  Burch,  44  Minn.  33;  Hoppin  v.  Tobey's  Ex'rs,  9  R.  I.  42 
Leighton  v.  Orr,  44  Iowa,  679;  Sands  v.  Sands,  112  111.  225;  Allore  v. 
Jewell,  94  U.  S.  506. 

(879) 


§  386  REAI^  PROPERTY.  [Ch.   19 

§  386.     Effect  of  alterations. 

Since  the  conveyance  takes  effect  only  upon  delivery,^ ^^ 
until  that  is  effected,  the  grantor  may  make  such  alterations 
or  insertions  therein  as  he  may  desire.^ ^^ 

An  alteration  made,  after  delivery,  by  consent  of  all  the 
parties  to  the  conveyance,  is  binding  and  effective  if  it  is 
followed  by  a  new  delivery  of  the  instrument,^  ^^  provided,  it 
seems,  that  no  rights  vested  in  the  grantee  by  the  conveyance 
as  it  originally  stood  are  divested  by  such  alteration,^  ^^  and 
subject  to  the  restriction  that  the  record  of  the  conveyance 
in  its  altered  state  will  not  affect  innocent  third  persons  un- 
less it  is  acknowledged  after  the  alteration.^^^ 

An  alteration  made  after  the  delivery  of  the  conveyance, 
not  followed  by  a  new  delivery,  is  absolutely  nugatory,  so 
far  as  concerns  any  rights  which  may  have  already  vested 
under  the  conveyance.^ ^^     Any  material  alteration,  erasure, 

161  Post,  §  406. 

162  Duncan  v.  Hodges,  4  McCord  (S.  C.)  239.  17  Am.  Dec.  734; 
31iller  v.  Williams  (Colo.)  59  Pac.  740;  Reformed  Dutch  Church  of 
North  Branch  v.  Ten  Eyck,  25  N.  J.  Law,  40;  Coney  v.  Laird,  153 
Mo.  408. 

i63Malarin  v.  United  States,  1  Wall.  (U.  S.)  282;  Woodbury  v. 
Allegheny  &  K.  R.  Co.  (C.  C.)  72  Fed.  371;  Fitzpatrick  v.  Fitzpat- 
rick,  6  R.  I.  64,  75  Am.  Dec.  681;  Bassett  v.  Bassett,  55  Me.  127; 
Prettyman  v.  Goodrich,  23  111.  330;  Burns  v.  Lynde,  6  Allen  (Mass.) 
305;  Tucker  v.  Allen,  16  Kan.  312;  Byers  v.  McClanahan,  6  Gill  & 
J.    (Md.)    250. 

164  See  post,  §  406. 

165  Moelle  V.  Sherwood,  148  U.  S.  21;  Sharpe  v.  Orme,  61  Ala.  263; 
Webb  V.  Mullins,  78  Ala.  111.  See  Colt  v.  Starkweather,  8  Conn. 
289. 

166  Do3  d.  Lewis  v.  Bingham,  4  Barn.  &  Aid.  672;  Chessman  v. 
Whittemore,  23  Pick.  (Mass.)  231;  Woods  v.  Hilderbrand,  46  Mo. 
284,  2  Am.  Rep.  513;  Jackson  v.  Jacoby,  9  Cow.  (N.  Y.)  125;  Stanley 
V.  Epperson,  45  Tex.  645;  North  v.  Henneberry,  44  Wis.  306;  Rifener 
V.  Bowman,  53  Pa.  St.  313;  Collins  v.  Collins,  51  Miss.  311,  24  Am. 
Rep.  632. 

.(880) 


Ch.  19]  TRANSFER  INTER  VIVOS.  §387 

or  cancellation,  however,  invalidates  any  limitations  or  cov- 
enants therein  having  an  operation  in  the  future.^ ®^ 

III.     Description  of  the  Land. 

The  most  usual  modes  of  describing  the  land  which  is  the 
subject  of  the  conveyance  are  (1)  the  use  of  a  distinctive  desig- 
nation recognized  as  applicable  to  that  particular  land;  (2) 
reference  to  the  township  and  section  of  the  government  sur- 
vey; (3)  reference  to  a  map  or  plat  which  indicates  the  loca- 
tion of  the  land;  (4)  identification  of  the  boundaries  of  the 
land  by  reference  to  monuments  or  courses  and  distances. 

A  conveyance  of  land  as  bounded  on  a  body  of  water  or 
watercourse,  or  on  a  highway,  will  pass  the  land  under  the 
water  or  within  the  highway  as  far  as  the  grantor  owns,  this 
being  usually  as  far  as  the  center  of  a  watercourse  or  a  high- 
way. A  different  rule  is  frequently  adopted  when  the  land  is. 
in  terms  bounded  by  the  margin  of  the  water  or  the  highway. 

Easements  appurtenant  to  land  pass  therewith  without  spe- 
cial mention. 

§  387.     General  considerations. 

In  order  to  make  a  valid  conveyance  of  land,  it  is  essen- 
tial that  the  land  itself,  the  subject  of  the  conveyance,  be 
capable  of  identification,  and,  if  the  conveyance  does  not 
refer  to  the  land  with  such  particularity  as  to  render  this 
possible,  the  conveyance  is  absolutely  nugatory.^*^^     The  lan- 

167  Sheppard's  Touchstone  (Preston's  Ed.)  69;  Mathewson's  Case, 
5  Coke,  23a;  2  Bl.  Comm.  308;  4  Cruise,  Dig.  tit.  32,  c.  27,  §§  12- 
22;  Lewis  v.  Payn,  8  Cow.  (N.  Y.)  71,  18  Am.  Dec.  427;  North  v. 
Henneberry,  44  Wis.  306;  Withers  v.  Atl^inson,  1  Watts  (Pa.)  236; 
Wallace  v.  Harmstad,  15  Pa.  St.  462,  53  Am.  Dec.  603;  Chessman  v. 
Whittemore,  23  Pick.   (Mass.)   231. 

188  Brandon  v.  Leddy,  67  Cal.  43;  Holme  v.  Strautman,  35  Mo.  293; 
Carter  v.  Barnes,  26  111.  455;  Wilson  v.  Johnson,  145  Ind.  40;  Wilson 
V.  Inloes,  6  Gill  (Md.)  121;  Bailey  v.  White.  41  N.  H.  337;  Kea  v. 
Robeson,  40  N.  C.  373;  Howard  v.  North,  5  Tex.  290,  51  Am.  Dec. 
769. 

(881) 
Real  Prop.— 56. 


I   387  REAL    PROPERTY.  [Ch.   19 

guage  of  the  conveyance  bv  which  the  land  is  sought  to  be 
identified  is  usually  referred  to  as  the  "description." 

The  description  may  be  by  the  use  of  a  designation  for  the 
land  which  has  a  recognized  application  thereto,  as  when  one 
conveys  the  "A."  estate  or  the  "B."  farm.i*'^  The  grantor 
may  also  describe  the  land  as  his  land  in  a  certain  town,  or  in 
a  certain  block,  or  on  a  certain  street,  and  such  a  description  is 
sutScient  if  the  land  can  be  identified. ^'^'^  So,  a  conveyance 
of  "all  the  land"  or  "all  the  property"  owned  by  the  grantor, 
or  of  all  that  owned  by  him  in  a  particular  district,  is  suffi- 
-cient  to  convey  land  within  the  scope  of  the  description,^'^ 
as  is  a  conveyance  of  all  one's  interest  in  the  estate  of  a  per- 
son deceased,^ ''^^  or  of  such  land  as  formerly  belonged  to  or 
w^as  conveyed  to  a  particular  person.^ '^^ 

Whenever  land  is  occupied  and  improved  by  a  building 
'Or  other  structure  designed  for  a  particular  purpose,  which 
comprehends  its  beneficial  use  and  enjoyment,  it  may  be  con- 
veyed by  a  term  which  thus  describes  the  purpose  to  which 

169  See  Haley  v.  Amestoy,  44  Cal.  132;  Trentman  v.  Neff,  124  Ind. 
503;  Vaughan  v.  Swayzie,  56  Miss.  706;  Charles  v.  Patch,  87  Mo. 
450;  Lennig's  Ex'rs  v.  White  (Va.)  20  S.  E.  831. 

iToFrey  v.  Clifford,  44  Cal.  335;  Blair  v.  Brims,  8  Colo.  397;  Bird 
w.  Bird,  40  Me.  398;  Harmon  v.  James,  7  Smedes  &  M.  (Miss.)  Ill, 
45  Am.  Dec.  296;  Doe  d.  Carson  v.  Ray,  52  N.  C.  609,  78  Am.  Dec. 
267. 

iTiPettigrew  v.  Dobbelaar,  63  Cal.  396;  First  Nat.  Bank  of  Attle- 
iDoro  V.  Hughes,  10  Mo.  App.  7;  Brown  v.  Warren,  16  Nev.  228;  Marr 
V.  Hobson,  22  Me.  321;  Harvey  v.  Edens,  69  Tex.  420;  Clifton  Heights 
Land  Co.  v.  Randell,  82  Iowa,  89;  Sally  v.  Giinter,  13  Rich.  Law 
(S.  C.)   72. 

i'2  Sheppard's  Touchstone,  250;  Barnes  v.  Bartlett,  47  Ind.  98; 
Patterson  v.  Snell,  67  Me.  559;  Butrick  v.  Tilton,  141  Mass.  93; 
Austin  V.  Dolbee,  101  Mich.  292;  Stewart  v.  Cage,  59  Miss.  558;  Bar- 
ton's Lessee  v.  Morris'  Heirs,  15  Ohio.  408;  McGavock  v.  Deery,  1 
Odd.   (Tenn.)   265. 

173  Choteau  v.  Jones,  11  111.  300,  50  Am.  Dec.  460;  Hogan  v.  Page, 
'22  Mo.  55;  McChesney's  Lessee  v.  Wainwright,  5  Ohio,  452;  Gresham 
V.  Chambers.  80  Tex.  544. 
((SS2) 


Ch.   ]9]  TRANSFER  INTER  VIVOS.  §   387 

it  is  thus  appropriated.^^"*  Thus,  under  the  desiojnation  of  a 
"house/'  a  "mill,"  a  "factory,"  or  like  expressions,  not  only 
the  land  beneath  the  building,^  "^^  but  also  so  much  of  the  ad- 
joining land  as  is  ordinarily  used  therewith  for  the  purpose 
expressed  in  such  designation,^'^  will  pass,  provided,  of 
course,  a  contrary  intention  does  not  appear.  So,  by  a  con- 
veyance of  a  "well,"  not  merely  the  right  to  take  water  from 
the  well,  but  the  land  itself  occupied  by  the  well,  will  pass.^^^ 
By  a  conveyance  of  "water,"  the  land  under  the  water  does 
not  usually  pass,  the  proper  description  being  land  covered 
by  water.^'^^  A  conveyance  of  "woods"  or  "forests"  is  suflfi- 
cient  to  pass  the  land  itself.^  ^'^     A  conveyance  of  the  "prof- 

I'l  Johnson  v.  Rayner,  6  Gray  (Mass.)  107;  Cunningham  v.  Webb, 
69  Me.  92. 

1-3  Comyn's  Dig.  Grant,  E  11;  Dikeman  v.  Taylor,  24  Conn.  219; 
Hatch  V.  Brier,  71  Me.  542;  Jamaica  Pond  Aqueduct  Corp.  v.  Chand- 
ler, 9  Allen  (Mass.)  159;  Webster  v.  Potter,  105  Mass.  414;  Cravens 
V.  Pettit,  16  Mo.  210;  Langworthy  v.  Coleman,  18  Nev.  440;  Doe  d. 
Wise  V.  Wheeler,  28  N.  C.  196;  Wilson  v.  Hunter,  14  Wis.  683,  80 
Am.  Dec.  795;  Bacon  v.  Bowdoin,  22  Pick.  (Mass.)  401,  2  Mete. 
(Mass.)  591. 

176  Whitney  v.  Olney,  3  Mason,  280,  Fed.  Cas.  No.  17,595;  Sparks 
V.  Hess,  15  Cal.  186;  Forbush  v.  Lombard,  13  Mete.  (Mass.)  109; 
Ammidown  v.  Ball,  8  Allen  (Mass.)  293;  Snow  v.  Inhabitants  of 
Orleans,  126  Mass.  453;  Gibson  v.  Brockway,  8  N.  H.  465,  31  Am. 
Dec.  200;  Winchester  v.  Hees,  35  N.  H.  43;  Marston  v.  Stickney,  58 
N.  H.  609;  Maddox  v.  Goddard,  15  Me.  218,  33  Am.  Dec.  604;  Doane 
V.  Broad  Street  Ass'n,  6  Mass.  332;  Smith  v.  Martin,  2  Saund.  400, 
note  2.    Compare  Ogden  v.  Jennings,  62  N.  Y.  526. 

So  a  conveyance  of  a  "pound"  has  been  held  to  include  the  land 
under  the  pound  (Wooley  v.  Inhabitants  of  Groton,  2  Cush.  [Mass.] 
305),  of  a  "rope  walk,"  land  actually  and  exclusively  devoted  to  the 
use  of  the  rope  walk  (Davis  v.  Handy,  37  N.  H.  65),  and  of  a 
"bridge,"  land  on  which  the  bridge  is  erected  (Sparks  v.  Hess,  15 
Cal.  186).  And  a  conveyance  of  a  "railroad"  may  include  land  used 
with  a  railroad.     Missouri  Pac.  Ry.  Co.  v.  Maffitt,  94  Mo.  56. 

i"7  Johnson  v.  Rayner,  6  Gray  (Mass.)  107;  Mixer  v.  Reed,  25  Vt. 
254.     See  Co.  Litt.  5. 

ITS  Co.  Litt.  4b. 

iT9Co.  Litt.  4b. 

(883) 


§   388  REAL    PROPERTY.  [Ch.   19 

its"  of  land  will  pass  the  land  itself,  "for  what  is  the  land 
but  the  profits"  thereof.^  ^^ 

§  388.     Description  by  government  survey. 

One  of  the  first  acts  passed  bj  congress  looking  towards 
the  disposal  of  the  public  domain  provided  for  what  is  known 
as  the  "rectangular  system"  of  surveys,  which  has  ever  since 
been  in  force,  and  which  furnishes  the  method  of  description 
of  land  for  all  purposes  of  transfer  in  these  parts  of  the  coun- 
try in  which  the  title  to  land  is  derived  from  the  United 
States.^^^  By  this  system,  the  public  lands  are  divided  into 
"townships,"  each  six  miles  square,  these  being  formed  by 
lines  running  east  and  west,  six  miles  apart,  which  are 
crossed,  at  intervals  of  six  miles,  by  lines  running  north  and 
south.  Each  township,  thus  including  approximately  thirty- 
six  square  miles,  is  divided  into  thirty-six  rectangular  por- 
tions, each  one  mile  square,  called  a  "section."  A  section  is 
the  smallest  subdivision  of  which  the  lines  are  actually  run 
on  the  ground,  but  smaller  subdivisions  are  recognized,  these 
being  the  "quarter  section,"  containing  one  hundred  and 
sixty  acres,  formed  by  running  lines  at  right  angles  from 
points  on  the  section  boundaries  half  way  between  the  cor- 
ners, and  "quarter  quarter  sections,"  of  forty  acres  each.  The 
areas  of  the  various  divisions  do  not,  however,  always  corre- 
spond exactly  to  the  figures  above  given,  owing  to  irregulari- 
ties in  the  land,  and  the  convergence  of  the  meridians  as  one 
goes  further  north. 

When  the  land  which  would  otherwise  be  comprised  with- 
in a  section  is  in  part  covered  by  navigable  waters,  "mean- 
der" lines  are  run  to  define  the  sinuosities  of  the  bank  of  the 

180  qo.  Litt.  4b;   Doe  d.  Goldin  v.  Lakeman,  2  Barn.  &  Adol.  42;  ' 
Caldwell  v.  Fulton,  31  Pa.  St.  484;  Clement  v.  Youngman,  40  Pa.  St. 
344. 

181  See  Rev.  St.  U.  S.  §§  2395-2397. 

(884) 


(3h.  19]  TRANSFER  INTER  VIVOS.  §   389 

stream  or  lake,  and  as  a  means  of  ascertaininaj  the  quantity 
of  land  in  the  "fractional"  section,  as  it  is  called.  These 
meander  lines  are  not,  however,  boundaries  of  such  frac- 
tional section,^  ^-  these  being  the  banks  of  the  stream  or  lake, 
or  the  middle  line  thereof,  in  accordance  with  considerations 
previously  referred  to.^^^ 

Each  tier  of  townships  running  north  and  south  is  known 
as  a  "range,"  and  the  range  is  described  with  reference  to  a 
line  knowTi  as  the  "principal  meridian,"  while  each  tier  of 
townships  running  east  and  west  is  described  with  reference 
to  some  parallel  of  latitude,  taken  as  a  "principal  base  line," 
Thus,  a  tov^mship  is  referred  to  as  being  a  certain  number 
north  or  south  of  a  certain  base  line,  and  a  certain  number 
east  or  west  of  a  certain  meridian. 

The  thirty-six  sections  in  a  township  are  numbered  con- 
secutively, beginning  at  the  northeast  corner,  and  counting 
west  therefrom,  and  then  proceeding  east  on  the  tier  of  sec- 
tions next  below,  and  so  on  until  section  thirty-six  is  reached 
in  the  southeast  corner.  The  quarter  section  or  quarter 
quarter  section  is  defined  with  reference  to  the  section  of 
which  it  forms  a  part,  as  when  one  conveys  the  southeast 
quarter  of  the  northwest  quarter  of  section  ten,  in  township 
thirty-five  north,  range  five  east.^^^ 

§  389.     Reference  to  plat. 

In  many  of  the  states  there  are  statutory  provisions  author- 
izing an  owner  of  land  to  have  it  surveyed  and  laid  off  in  lots 
and  blocks,  streets,  parks,  and  the  like,  and  to  file  in  the 
public  records  a  plat  or  map  of  the  land  as  thus  laid  off, 
authenticated  and  certified  as  may  be  required.     Thereafter 

182  St.  Paul  &  P.  R.  Co.  V.  Schurmeir,  7  Wall.  (U.  S.)   272. 

183  See  ante,  §§  264-267. 

184  The  government  method  of  survey  is  brieflj-  and  clearly  de- 
scribed in  Warvelle,  Abstracts  of  Title,  138  et  seq. 

(885) 


R  390  REAL    PROPERTY.  [Ch.   19 

any  one  of  these  lots  or  blocks  may  be  conveyed  by  mere  ref- 
erence to  the  number  which  it  bears  upon  the  recorded  plat, 
thus  all  necessity  of  a  detailed  description  being  obviated. 
The  statute  usually  contains  provisions  to  the  effect  that  the 
filing  of  the  plat  shall  constitute  a  dedication  of  the  land 
marked  thereon  as  intended  for  streets  or  other  public  uses. 

Even  though  there  is  no  statutory  provision  on  the  sub- 
ject, or  the  plat  is  not  authenticated  and  recorded  as  required 
by  the  statute,  a  reference  in  the  conveyance  to  a  particular 
plat  for  purposes  of  description  makes  the  plat  in  effect  a 
part  of  the  conveyance,  and  it  may  accordingly  be  utilized 
to  identify  the  land  conveyed. ^^^  The  only  effect,  therefore, 
of  the  statutes  providing  for  the  record  of  plats,  so  far  as 
concerns  their  use  for  purposes  of  description,  is  apparently 
to  furnish  a  means  for  their  preservation,  and  thus  to  avoid 
any  possible  loss  of  the  means  of  identifying  the  land. 

§  390.     Monuments,  courses,  and  distances. 

Land  is  frequently  described  in  a  conveyance,  or  attempt- 
ed to  be  described,  by  naming  its  boundaries  in  detail.  Such 
a  description,  if  properly  made,  is  Well  calculated  to  identify 
the  land,  but  frequently,  owing  to  carelessness  in  making  the 
survey  on  which  the  description  is  based,  or  in  preparing  the 
conveyance,  there  is  difficulty  in  locating  the  boundaries  on 
the  ground.  In  the  case  of  a  description  by  boundaries,  as 
in  other  cases,  the  intention  of  the  parties,  as  inferred  from 
the  terms  of  the  description,  is  the  controlling  considera- 
tion,^ ^^  and  any  rules  which  the  courts  may  have  formulated 

185  Simmons  v.  Johnson,  14  Wis.  523;  Young  v.  Cosgrove,  83  Iowa, 
682;  Corbett  v.  Norcross,  35  N.  H.  99;  Deery  v.  Cray,  10  Wall.  (U. 
S.)  263;  Sanders  v.  Ransom,  37  Fla.  457;  Sears  v.  King,  91  Ga.  577; 
Borough  of  Birmingham  v.  Anderson,  48  Pa.  St.  253;  Erskine  v. 
Moulton,  66  Me.  276;  Nichols  v.  New  England  Furniture  Co.,  100 
Mich.  230;   Sanborn  v.  Mueller,  38  Minn.  27. 

i«6  Reed  V.  Proprietors  of  Locks  &  Canals  on  Merrimac  River,  8 

(886) 


(3h.   igj  TRANSFER  INTER  VIVOS.  Jn   3«J0 

as  to  the  relative  importance  of  various  elements  of  the  de- 
scription are  merely  intended  as  aids  in  arriving  at  this  in- 
tention. Boundaries  are  described  by  naming  natural  or 
artificial  monuments  to,  from,  or  along  which  the  lines  are  to 
run,  or  by  stating  the  "courses  and  distances"  of  such  lines^ 
and  frequently  by  all  these  "elements"  of  description,  as  they 
are  termed. 

A  monument,  for  the  purpose  of  description,  may  consist 
of  any  object  or  mark  on  the  land,  whether  natural  or  arti- 
ficial, which  may  serve  to  identify  the  location  of  a  line  con- 
stituting a  part  of  the  boundary.  The  monument  may  be 
either  a  permanent  natural  object,  such  as  a  river,  lake,  ledge 
of  rocks,  or  tree,  or  it  may  be  an  artificial  object,  such  as  a 
highway,  wall,  ditch,  or  a  post. 

Frequently  the  corners  or  lines  are  defined  by  reference 
to  adjoining  land,  or  to  some  adjoining  structure  which,  in 
its  legal  signification,  includes  the  land  under  it,  such  as  a 
house  or  a  mill.  In  such  a  case  the  land  conveyed  extends 
merely  to  the  side  of  the  land  or  structure  referred  to  as  a 
monument,^^"  while  in  the  ordinary  case  of  a  monument,  the 
name  of  which  does  not  include  the  ownership  of  land,  such 
as  a  highway,  wall,  or  post,  the  land  conveyed  extends  to  the 
center  thereof.^  ^'^  A  monument  may  even  consist  of  an  ob- 
ject or  point  not  existent  or  fixed  at  the  time  of  the  convey- 
ance, but  which  is  intended  to  be  thereafter  erected  or  fixed, 
and,  when  this  is  done,  the  call  therefor  will  be  of  the  same 

How.  (U.  S.)  274;  Abbott  v.  Abbott,  51  Me.  575;  Codman  v.  Evans, 
1  Allen  (Mass.)  443;  Serrano  v.  Rawson,  47  Cal.  52;  Bruensmann  v. 
Carroll,  52  Mo.  313;  Peck  v.  Mallams,  10  N.  Y.  509;  White  v.  Gay, 
9  N.  H.  126,  31  Am.  Dec.  224;  Miller  v.  Bryan,  86  N.  C.  167;  Brown- 
ing's Adm'x  V.  Atkinson,  37  Tex.  633. 

18' City  of  Boston  v.  Richardson,  13  Allen  (Mass.)  146,  154. 

i*&  City  of  Boston  v.  Richardson,  13  Allen  (Mass.)  146,  154;  Free- 
man V.  Bellegarde,  108  Cal.  179;    Sleeper  v.  Laconia,  60  N.  H.  201. 

(887) 


I  390  REAL    PROPERTY.  [Ch.   19 

effect  as  if  the  monument  had  existed  at  the  time  of  the  con- 
veyance.^^® 

A  "course"  is  the  direction  in  which  a  line  runs,  stated  with 
reference,  not  to  its  terminus,  but  to  its  correspondence  with 
a.  certain  point  of  the  compass,  or  its  variation  from  the 
magnetic  or  sidereal  meridian. 

Subject  to  the  controlling  consideration  of  the  intention  of 
the  parties,  the  primary  rule  in  applying  a  description  by 
l)0undaries  is  that,  in  case  of  conflict,  calls  for  fixed  and 
known  monuments  will  prevail  over  inconsistent  calls  for 
-courses  and  distances,  monuments  marked  on  the  ground  be- 
ing from  their  very  nature  more  likely  to  be  correct  than 
mere  paper  statements  as  to  the  character  of  an  imaginary 
line.-^®*^  This  rule  is,  however,  not  absolute,  and  the  calls 
for  monuments  must  yield  to  those  for  courses  and  distances 
if  it  in  any  way  appears  that  the  calls  for  courses  and  dis- 
tances are  more  to  be  relied  on.^^^  When  the  courses  and 
distances  conflict,  the  whole  description  is  to  be  considered 
to  determine  which  conforms  to  the  intention  of  the  parties, 
and  there  is  no  rule  by  which  preference  is  to  be  given  to 
one  element  as  against  the  other.^^^ 

189  Makepeace  v.  Bancroft,  12  Mass.  469,  3  Gray's  Cas.  287;  Lerned 
V.  Morrill,  2  N.  H.  197,  3  Gray's  Cas.  289;  Blaney  v.  Rice,  20  Pick. 
(Mass.)  62,  3  Gray's  Cas.  293;  Mosher  v.  Berry,  30  Me.  83,  50  Am, 
Dec.  614.     See  Maxey  v.  Thurman,  50  Cal.  321. 

loopernam  v.  Wead,  6  Mass.  131,  3  Gray's  Cas.  285;  Newsom  v. 
Prior's  Lessee,  7  Wheat.  (U.  S.)  10;  White  v.  Williams,  48  N.  Y. 
344,  3  Gray's  Cas.  300;  Hoban  v.  Cable,  102  Mich.  206,  Finch's  Cas. 
1081;  Beaudry  v.  Doyle,  68  Cal.  105;  Allen  v.  Kersey,  104  Ind.  1; 
Riley  v.  Griffin,  16  Ga.  141,  60  Am.  Dec.  726;  Bauer  v.  Gottmanhau- 
sen,  65  111.  499;  Cox  v.  Couch,  8  Pa.  St.  147;  Johnson  v.  Archibald, 
78  Tex.  96,  22  Am.  St.  Rep.  27;   4  Kent's  Comm.  466. 

191  White  V.  Luning,  93  U.  S.  514;  United  States  v.  Cameron 
<Ariz.)  21  Pac.  177;  Hamilton  v.  Foster,  45  Me.  32;  Murdock  v. 
Chapman,  9  Gray  (Mass.)  156;  Buffalo,  N.  Y.  &  E.  R.  Co.  v.  Stigeler, 
€1  N.  Y.  348;  Jamison  v.  Fopiano,  48  Mo.  194. 

192  Hall    V.    Eaton,    139    Mass.    217,    3    Gray's   Cas.    305;    Preston's 

(888) 


€h.  19]  TRANSFER  INTER  VIVOS.  §  3<J0 

Quite  frequently  the  quantity  or  estimated  quantity  of  the 
land  is  named  in  the  conveyance,  but  this  is  considered  in- 
ferior as  an  indication  of  the  location  of  the  boundaries  to 
the  elements  above  named,  and,  if  inconsistent,  must  yield 
to  calls  for  courses  and  distances,^  ^^  as  well  as  to  calls  for 
monuments.^ ^"^  In  particular  cases,  however,  when  the  other 
calls  evidently  do  not  confonn  to  the  intention  of  the  par- 
ties, a  call  for  quantity  may  have  a  controlling  effect.^^^ 

When  the  description  of  a  boundary  line  is  uncertain  and 
ambiguous,  if  the  parties  to  the  conveyance  locate  and  mark 
on  the  ground  a  certain  line  as  being  that  described,  and  hold 
possession  accordingly,  this  '"practical  location"  of  the  line 
is  regarded  as  showing  the  meaning  of  the  ambiguous  descrip- 
tion, and,  as  such,  conclusive  on  each  of  them.^^^  Occasion- 
ally it  has  even  been  decided  that  a  line  thus  marked  out  and 
acted  on  is  conclusive  upon  the  parties,  though  the  course 
as  given  in  the  conveyance  is  free  from  ambiguity,  and  calls 
for  a  different  line.^^^ 

Heirs  v.  Bowmar,  6  Wheat.  (U.  S.)  580;  McClintock  v.  Rogers,  11 
111.  279;  Blight  v.  Atwell,  4  J.  J.  Marsh.  (Ky.)  278;  Williams  v. 
Mayfield,  57  Tex.  364;  Curtis  v.  Aaronson,  49  N.  J.  Law,  68;  Loring 
V.  Norton,  8  Me.  61. 

193  Doe  d.  Phillips'  Heirs  v.  Porter,  3  Ark.  18,  36  Am.  Dec.  448; 
Oilman  v.  Smith,  12  Vt.  150;  Allen  v.  Kersey,  104  Ind.  1;  Sanders 
V.  Godding,  45  Iowa,  463;  Ray  v.  Pease,  95  Ga.  153. 

194  Emery  v.  Fowler,  38  Me.  99,  3  Gray's  Cas.  295;  Allen  v.  Kersey, 
104  Ind.  1;  Doe  d.  Arden  v.  Thompson,  5  Cow.  (N.  Y.)  371;  Thomp- 
son V.  Sheppard,  85  Ala.  611;   Petts  v.  Gaw,  15  Pa.  St.  218. 

105  winans  v.  Cheney,  55  Cal.  567;  Hoffman  v.  City  of  Port  Huron, 
102  Mich.  417;  Sanders  v.  Godding,  45  Iowa,  463. 

196  Wells  V.  Jackson  Iron  Mfg.  Co.,  47  N.  H.  235;  Hastings  v. 
Stark,  36  Cal.  122;  Raymond  v.  Nash,  57  Conn.  447;  Den  d.  Haring 
V.  Van  Houten,  22  N.  J.  Law,  61;  Stone  v.  Clark,  1  Mete.  (Mass.) 
381;  Meeks  v.  Willard,  57  N.  J.  Law,  22;  Linney  v.  Wood,  66  Te.x. 
22;  Messer  v.  Oestreich,  52  Wis.  684. 

mvKnowles  v.  Toothaker,  58  Me.  172,  3  Gray's  Cas.  297;  Kellogg 
V.  Smith,  7  Cush.  (Mass.)  375.  This  seems  to  be  an  approximation 
to  the  view  held  by  some  of  the  courts  that  any  adjoining  owners 

(SS9) 


§   391  REAL    PROPERTY.  [Ch.   19 

§  391.     Boundaries  on  water. 

The  question  whether  land  under  water  belongs,  in  certain 
cases,  to  the  state  or  to  individuals,  has  been  before  dis- 
cussed.-^ ^^  The  question  now  arises  as  to  when,  in  case  of 
land  under  water  not  belonging  to  the  state,  a  conveyance  of 
land  as  abutting  on  the  water  will  be  construed  as  including 
land  under  the  water  belonging  to  the  grantor.  The  general 
rule  of  construction  of  a  conveyance  of  land  bounded  by 
w^ater  is  that,  unless  a  contrary  intention  appears,  it  passes 
the  soil  towards  the  center  of  the  water  as  far  as  the  grantor 
owns.-^^^  Accordingly,  if  the  shore  of  the  sea  belongs  to  the 
owner  of  the  upland,  it  passes  by  a  conveyance  by  him  of 
land  bounded  "by  the  sea"  or  ''harbor,"  or  other  words  de- 
scriptive of  the  water.^*^*^  So,  a  grant  of  land  bounded  on  a 
navigable  nontidal  river,  in  those  states  in  which  the  land 
under  such  a  river  is  not  vested  in  the  state,  prima  facie  con- 
veys the  whole  interest  of  the  grantor  so  far  as  he  owns,  which 
is  usually  to  the  center  of  the  stream. ^°^  So  the  grant  of  land 
bounded  on  a  nontidal,  nonnavigable  river,  the  land  under 
which  is  usually  in  the  abutting  owner  ad  filum  aquae, — that 
is,  to  the  middle  or  thread  of  the  stream, — prima  facie  con- 
may  locate  the  intervening  boundary  line  by  mere  oral  agreement. 
See  ante,  §§  259,  260. 

198  Ante,  §§  264-267. 

199  Paine  v.  Woods,  108  Mass.  160,  3  Gray's  Gas.  329.  See  note  to- 
Allen  V.  Weber,  27  Am.  St.  Rep.  56. 

200  City  of  Boston  v.  Richardson,  105  Mass.  351;  Winslow  v.  Pat- 
ten, 34  Me.  25;  Partridge  v.  Luce,  36  Me.  16;  Harlow  v.  Fisk,  12 
Gush.   (Mass.)   302;  Freeman  v.  Bellegarde,  108  Gal.  179. 

201  Jones  V.  Janney,  8  Watts  &  S.  (Pa.)  436,  42  Am.  Dec.  309; 
Braxon  v.  Bressler,  64  111.  492;  Norcross  v.  Griffiths,  65  Wis.  615,  56 
Am.  Rep.  642;  Butler  v.  Grand  Rapids  &  L  R.  Go.,  85  Mich.  246,  24 
Am.  St.  Rep.  84;  June  v.  Purcell,  36  Ohio  St.  396;  Gity  of  Boston 
V.  Richardson,  105  Mass.  351;  Williamsburg  Boom  Go.  v.  Smith, 
84  Ky.  372;  Inhabitants  of  Warren  v.  Inhabitants  of  Thomaston,  75 
Me.  329,  46  Am.  Rep.  397. 

(890) 


Ch.   19]  TRANSFER  INTER  VIVOS.  §  391 

vejs  the  soil  to  such  middle  line.^^^  In  the  ease  of  a  con- 
veyance of  land  bounded  by  a  lake  or  pond,  the  same  gen- 
eral rule,  by  the  weight  of  authority,  applies,  and  the  con- 
veyance pnma  facie  passes  the  soil  so  far  as  the  grantor 
OAvns,  whether  this  o^\^le•rship  extends  to  the  center  of  the 
lake,  to  the  high-water  mark,  or  to  an  intermediate  point.^"^ 
The  effect  thus  given  to  conveyances  as  passing,  prima 
facie,  the  soil  under  the  water,  is  based  not  only  on  the  pre- 
sumption that  the  parties  intend  the  ownership  thereof  to 
be  vested  in  the  person  who  is  alone,  usually,  in  a  position  to 
make  use  of  it,  and  who  probably  will  need  to  do  so,  but  also, 
in  some  decisions,  upon  the  ground  of  public  policy,  which 
renders  it  desirable  to  prevent  the  existence  of  small  strips 
of  land  along  the  margin  of  streams  or  other  bodies  of  water, 
the  title  to  which  may  remain  in  abeyance  for  many  years, 
and  which  may  then  be  asserted  merely  in  order  to  harass 
the  owner  of  the  adjoining  land.^^^  Sometimes,  however,  in 
the  case  of  a  stream,  the  rule  is  stated  as  being  merely  an 
application  of  the  principle  that,  when  a  monument  is  re- 
ferred to,  the  land  conveyed  extends  to  the  center  of  such 
monument.^'^^ 

202  Stanford  v.  Mangin,  30  Ga.  355;  State  v.  Gilmanton,  9  N.  H. 
461;  Muller  v.  Lancia,  31  Tex.  265,  98  Am.  Dec.  529;  Canal  Fund 
Com'rs  V.  Kempshall,  26  Wend.  (N.  Y.)  404;  Fulmer  v.  Williams,  122 
Pa.  St.  191,  9  Am.  St.  Rep.  88. 

203  Paine  v.  Woods,  108  Mass.  160,  3  Gray's  Gas.  329;  Brophy  v. 
Richeson,  137  Ind.  114;  Castle  v.  Elder,  57  Minn.  289;  Hardin  v. 
Jordan,  140  U.  S.  371;  Stoner  v.  Rice,  121  Ind.  51;  Clute  v.  Fisher, 
65  Mich.  48;  Cobb  v.  Davenport,  32  N.  J.  Law,  369;  Gouverneur  v. 
National  Ice  Co.,  134  N.  Y.  355,  30  Am.  St.  Rep.  669;  Lembeck  v. 
Nye,  47  Ohio  St.  336,  21  Am.  St.  Rep.  828.  Contra,  Stevens  v.  King, 
76  Me.  197,  49  Am.  Rep.  609;  Kanouse  v.  Slockbower,  48  N.  J.  Eq. 
42. 

204  See  dissenting  opinion  by  Redfield,  J.,  in  Buek  v.  Squiers,  22 
Vt.  484;  Luce  v.  Carley,  24  Wend.  (N.  Y.)  451,  35  Am.  Dec.  637. 

205  Sleeper  v.  Laconia,  60  N.  H.  201,  3  Gray's  Gas.  333;  Child  v. 
Starr,  4  Hill   (N.  Y.)    369. 

(891) 


§  391  REAL   PROPERTY.  [Ch.    19 

When  the  land  conveyed  is  described,  not  as  bounded  by 
a  stream,  but  by  or  on  the  "bank,"  "shore,"  "margin,"  or 
"edge"  of  the  stream,  or  equivalent  terms  are  used,  the  land 
under  the  water  is  usually  regarded  as  excluded.^'^^  In  such 
cases  the  line  of  low-water  mark  has  usually  been  adopted  as 
the  boundary.^^^  The  same  principle  has  been  adopted  in 
the  case  of  conveyances  of  land  bounded  by  the  margin  or 
shore  of  a  lake.^*^^ 

The  fact  that  the  description,  while  stating  that  the  land 
is  bounded  "by"  a  stream,  or  that  it  extends  "to"  a  stream, 
or  that  a  boundary  runs  "along"  the  stream,  names  an  ob- 
ject on  the  shore  as  a  monument,  does  not  show  an  intention 
to  exclude  the  stream,  but  this  is  regarded  as  merely  a  state- 
ment of  the  point  at  which  the  boundary  strikes  the  stream, 
it  being  usually  impracticable  to  place  monuments  actually 
in  the  stream.^"^ 

206  Child  V.  Starr,  4  Hill  (N.  Y.)  369,  reversing  20  Wend.  (N.  Y.) 
149,  3  Gray's  Gas.  315;  Halsey  v.  McGormick,  13  N.  Y.  296,  3  Gray's 
€as.  327;  Rockwell  v.  Baldwin,  53  111.  19;  Bradford  v.  Cressey,  45 
Me.  9;  Murphy  v.  Copeland,  51  Iowa,  515,  43  Am.  Rep.  118;  Lamb 
V.  Ricketts,  11  Ohio,  311;  Allen  v.  "Weber,  80  Wis.  531,  27  Am.  St. 
Rep.  51;  Eddy  v.  St.  Mars,  53  Vt.  462,  38  Am.  Rep.  695.  Contra, 
Sleeper  v.  Laconia,  60  N.  H.  201,  3  Gray's  Gas.  333,  49  Am.  Rep.  311. 

207  Halsey  v.  McGormick,  13  N.  Y.  296,  3  Gray's  Gas.  327;  Lamb 
V.  Ricketts,  11  Ohio,  311;  Murphy  v.  Copeland,  58  Iowa,  409,  43  Am. 
Rep.  118. 

208Axline  v.  Shaw,  35  Fla.  305;  Brophy  v.  Richeson,  137  Ind. 
114;  Allen  v.  Weber,  80  Wis.  531,  27  Am.  St.  Rep.  51.  But  see  Castle 
V.  Elder,  57  Minn.  289. 

209  Luce  V.  Carley,  24  Wend.  (N.  Y.)  451,  35  Am.  Dec.  637,  3 
Gray's  Gas.  324;  Low  v.  Tibbetts,  72  Me.  92,  39  Am.  Rep.  303;  Berry 
v.  Snyder,  3  Bush  (Ky.)  266,  96  Am.  Dec.  219;  Pike  v.  Munroe,  36 
Me.  309,  58  Am.  Dec.  751;  Cold  Spring  Iron  Works  v.  Inhabitants 
of  Tolland,  9  Gush.  (Mass.)  492;  Grant  v.  White,  63  Pa.  St.  271;  Rix 
V.  Johnson,  5  N.  H.  520,  22  Am.  Dec.  472;  Kent  v.  Taylor,  64  N.  H. 
489;  County  of  St.  Glair  v.  Lovingston,  23  Wall.  (U.  S.)  46,  64. 

(892) 


Qh.   19]  TRANSFER  INTER  VIVOS.  §   3*)2 

§  392.     Boundaries  on  ways. 

As  before  stated,  the  o^vnership  of  land  which  is  subject  to 
use  as  a  highway  is,  at  conmion  law,  in  individuals,  the  pub- 
lic having  merely  the  use  thereof,  while  in  this  country,  by 
force  of  statute,  the  ownership  of  the  land — the  "fee"  as  it 
is  called — is  quite  frequently  in  the  state  or  municipality  in 
trust  for  the  public.  In  the  latter  case,  a  conveyance  of  land 
as  bounded  ''by"  or  "along"  the  highway  can,  of  course,  vest 
in  the  grantee  no  part  of  the  land  occupied  by  the  highway, 
and  he  takes  merely  to  the  outer  edge  thereof.  When,  how- 
ever, the  grantor  owns  part  or  the  whole  of  the  land  subject 
to  the  highway  use,  the  question  frequently  arises  w^hether 
his  conveyance  passes  land  within  the  highway,  and,  in  de- 
ciding this  question,  the  same  considerations  apply  as  in  the 
analogous  case  of  a  conveyance  of  land  bounded  by  water, 
the  soil  under  which  belongs  to  the  grantor. 

A  conveyance  of  land  as  bounded  "on"  or  "by"  or  as  run- 
ning "along"  a  highway  will  convey  to  the  center  line  of  the 
highway,  if  the  grantor  owns  thereto,  unless  a  contrary  in- 
tention appear  from  the  conveyance. ^^"  So,  when  land  abut- 
ting on  a  highway  is  conveyed  by  terms  of  description  which 
make  no  mention  of  the  highway,  as  when  it  is  conveyed  by 
a  number  on  a  plat,  the  grantor's  interest  in  the  land  within 
the  highway  limits  presumably  passes  ;^^^  and  this  is  so,  even 

210  Paul  V.  Carver,  26  Pa.  St.  223,  3  Gray's  Cas.  356;  White  v. 
Godfrey,  97  Mass.  472,  3  Gray's  Cas.  372;  Hamlin  v.  Pairpoint  Mfg. 
Co.,  141  Mass.  51;  Columbus  &  W.  Ry.  Co.  v.  Witherow,  82  Ala.  190; 
Kittle  V.  Pfeiffer,  22  Cal.  484;  Silvey  v.  McCool,  86  Ga.  1;  City  of 
Dubuque  v.  Maloney,  9  Iowa,  451,  74  Am.  Dec.  358;  Thomas  v.  Hunt, 
134  Mo.  392;  In  re  Ladue,  118  N.  Y.  213;  Elphinstone,  Interpret,  of 
Deeds,  179.  And  so  a  conveyance  of  land  "south  of  the  road"  has 
been  held  to  convey  a  part  of  the  highway.  Helmer  v.  Castle,  109 
111.  664. 

2iiBerridge  v.  Ward,  10  C.  B.  (N.  S.)  400,  3  Gray's  Cas.  334; 
Champlin  v.  Pendleton,  13  Conn.  23,  3  Gray's  Cas.  342;  Gear  v. 
Barnum,  37  Conn.  229;  White's  Bank  of  Buffalo  v.  Nichols,  64  N.  Y. 

(893) 


^   392  REAL    PROPERTY.  [Ch.  19 

though,  the  length  of  the  boundary  lines  running  towards  the 
highway,  as  given,  would  carry  them  only  so  far  as  the  edge 
of  the  highway.^^^  On  the  other  hand,  a  description  of  the 
land  as  bounded  by  or  on  the  ''side,"  "margin,"  or  "edge"  of 
the  highway  is  usually  regarded  as  showing  an  intention  to 
exclude  the  land  within  the  higliwa^^  limits  from  the  opera- 
tion of  the  conveyance, ^^^  though  in  some  states  a  different 
view  is  taken.^^* 

By  analogy  to  the  rule  applied  in  the  case  of  boundaries  on 
streams,  it  would  seem  that  a  monument  at  the  side  or  edge 
,of  the  highway,  when  referred  to  as  a  starting  point  for  a 
line  running  along  the  highway,  should  not  exclude  the  soil 
within  the  highway  limits,  but  that  it  might  well  be  regard- 

65,  3  Gray's  Gas.  373;  Florida  Southern  Ry.  Go.  v.  Brown,  23  Fla. 
104;  Anthony  v.  Gity  of  Providence,  18  R.  I.  699;  Gox  v.  Louisville, 
N.  A.  &  G.  R.  Go.,  48  Ind.  178;  Gity  of  Dubuque  v.  Maloney,  9  Iowa, 
450,  74  Am.  Dec.  358;  Kneeland  v.  Valkenburgh,  46  Wis.  434,  32  Am. 
Rep.  719.  Gontra,  Sutherland  v.  Jackson,  32  Me.  80;  Hanson  v. 
Gampbell's  Lessee,  20  Md.  223;  Grant  v.  Moon,  128  Mo.  43.  Gom- 
pare  Hoboken  Land  &  Improvement  Go.  v.  Kerrigan,  31  N.  J. 
Law,  13. 

212  Oxton  V.  Groves,  68  Me.  371,  28  Am.  Rep.  75;  Paul  v.  Garver,  26 
Pa.  St.  223,  3  Gray's  Gas.  356;  Newhall  v.  Ireson,  8  Gush.  (Mass.) 
595,  54  Am.  Dec.  790;  Gould  v.  Eastern  R.  Go.,  142  Mass.  85;  Moody 
V.  Palmer,  50  Gal.  31.  But  see,  to  the  contrary,  Gity  of  Ghicago  v. 
Rumsey,  87  111.  348. 

213  Buck  V.  Squiers,  22  Vt.  484,  3  Gray's  Gas.  345;  Jackson  v.  Hath- 
away, 15  Johns.  (N.  Y.)  447;  Blackman  v.  Riley,  138  N.  Y.  318; 
Tyler  v.  Hammond,  11  Pick.  (Mass.)  193;  Holmes  v.  Turner's  Palls 
Co.,  142  Mass.  590;  Hughes  v.  Providence  &  W.  R.  Go.,  2  R.  I.  508; 
Grand  Rapids  &  I.  R.  Go.  v.  Heisel,  38  Mich.  62.  So  in  the  case  of  a 
reference  to  "the  line"  of  the  highway.  Hamlin  v.  Pairpoint  Mfg. 
Go.,  141  Mass.  51;  Gole  v.  Haynes,  22  Vt.  588.  Gontra,  Kneeland  v. 
Van  Valkenburgh,  46  Wis.   434,  32  Am.  Rep.  719. 

21*  Paul  V.  Garver,  26  Pa.  St.  223,  3  Gray's  Gas.  356;  Gox  v.  Freed- 
ley,  33  Pa.  St.  124,  3  Gray's  Gas.  361;  Woodman  v.  Spencer,  54  N.  H. 
507;  Johnson  v.  Anderson,  18  Me.  76  (semble) ;  Salter  v.  Jonas,  39 
N.  J.  Law,  469,  23  Am.  Rep.  229;  Anthony  v.  Gity  of  Providence,  18 
R.  I.  699.     Gompare  Hobson  v.  Philadelphia,  150  Pa.  St.  595. 

(894) 


£Yi.  19]  TRANSFER  INTER  VIVOS.  §   392 

ed  as  merely  showing  the  point  at  which  the  boundary  strikes 
the  highway,  since  it  is  not  usually  practicable  to  place  a 
monument  in  the  center  of  the  highway.  This  view  has  been 
adopted  in  at  least  one  state,^^^  but  usually  the  naming  of  a 
monument  at  the  side  or  edge  of  the  highway,  from  which 
the  line  is  to  run  along  the  highway,  has  been  regarded  as 
sufficient  to  exclude  the  land  within  the  highway  limits.-^ ° 
Where  the  latter  view  prevails,  the  same  result  would  neces- 
sarily follow  when,  as  the  starting  point  of  sucli  line,  tliore 
is  named,  not  a  monument  on  the  side  of  the  highway,  but 
an  imaginary  point,  such  as  the  intersection  of  the  side  line 
with  another  line.^^" 

In  applying  the  foregoing  rules,  the  highway  or  street  re- 
ferred to  is  the  highway  as  opened  or  defined  by  use,  rather 
than  the  highway  as  platted  or  recorded. -^^  A  change  in  the 
location  or  limits  of  the  highway  after  the  making  of  the  con- 

215  Cottle  V.  Young,  59  Me.  105;  Low  v.  Tibbetts,  72  Me.  92. 

216  Sibley  v.  Holden,  10  Pick.  (Mass.)  249,  3  Gray's  Cas.  340; 
Kings  County  Fire  Ins.  Co.  v.  Stevens,  87  N.  Y.  287,  3  Gray's  Cas. 
376;  Smith  v.  Slocomb,  9  Gray  (Mass.)  36;  Peabody  Heights  Co.  of 
Baltimore  v.  Sadtler,  63  Md.  533;  Hunt  v.  Brown,  75  Md.  481.  And 
see  Chadwick  v.  Davis,  143  Mass.  7;  Peck  v.  Denniston,  121  Mass. 
17;  Hoboken  Land  &  Improvement  Co.  v.  Kerrigan,  31  N.  J.  Law,  13. 

217  White's  Bank  of  Buffalo  v.  Nichols,  64  N.  Y.  65,  3  Gray's  Cas. 
373.     Contra,  Low  v.  Tibbetts,  72  Me.  92. 

The  words  "beginning  on  the  southerly  side  of"  the  road,  or  "at 
a  point"  on  such  side,  and  like  expressions,  have  been  in  one  state 
construed  as  merely  indicating  the  side  of  the  road  on  which  the 
land  lies,  and  not  as  locating  a  corner  of  the  land  at  the  edge  of 
the  road.  O'Connell  v.  Bryant,  121  Mass.  557,  and  see  Kneeland  v. 
Van  Valkenburgh,  46  Wis.  434.  But  more  usually  a  contrary  view  is 
taken.  Kings  County  Fire  Ins.  Co.  v.  Stevens,  87  N.  Y.  287,  3 
Gray's  Cas.  376;  Hoboken  Land  &  Improvement  Co.  v.  Kerrigan, 
31  N.  J.  Law,  13;  Walker  v.  Pearson,  40  Me.  152. 

21S  Falls  Village  Water  Power  Co.  v.  Tibbetts,  31  Conn.  165;  Cleve- 
land V.  Obenchain,  107  Ind.  591;  Brown  v.  Heard,  85  Me.  294; 
O'Brien  v.  King,  49  N.  J.  Law,  79;  Blackman  v.  Riley,  138  N.  Y.  318; 
Winter  v.  Payne,  33  Fla.  470;  Orena  v.  City  of  Santa  Barbara,  91 
Cal.  621.     But  see  Reid  v.  Klein,  138  Ind.  484. 

(895) 


^   392  REAL    PROPERTY.  [Ch.  19 

veyance  in  no  way  affects  the  bonndaries  of  the  abutting 
land.2i» 

In  some  jurisdictions  a  conve^-ance  is  not  regarded  as  in- 
cluding land  which  is  merely  intended  to  be  dedicated  as  a 
highway  in  the  future,  or  which  is  merely  marked  on  a  plat 
as  such,  although  the  land  conveyed  is  described  as  bounded 
on  such  intended  highway  as  if  it  actually  existed.^^*^  In 
other  jurisdictions  it  is  considered  that  such  a  reference  to 
land  as  a  highway  raises  the  same  presumption  of  an  inten- 
tion to  convey  the  land  to  the  center  of  the  proposed  highway 
as  if  the  highway  actually  existed.^ ^^ 

If  the  owner  owns  the  whole  of  the  bed  of  the  highway,, 
and  no  land  on  the  other  side  thereof,  his  conveyance  of  land 
on  the  highway  will,  it  has  been  held,  convey  all  the  land 
within  the  highway  limits.  ^^^ 

When  the  land  conveyed  is  described  as  extending  a  cer- 
tain distance  from  the  highway,  without  other  means  of  de- 
termining its  location,  the  line  is  to  be  measured,  it  has  been 
decided,  from  the  center  line  of  the  highway.^^^ 

Whether,  when  the  land  is  described  as  bounded  on  a  pri- 
vate way,  the  same  rule  applies  as  in  the  case  of  a  public  way,. 

219  White's  Bank  of  Buffalo  v.  Nichols,  64  N.  Y.  65,  3  Gray's  Gas. 
373;  Brantly  v.  Huff,  62  Ga.  532. 

220  Leigh  V.  Jack,  5  Exch.  Div.  264,  3  Gray's  Gas.  336;  Bangor 
House  Proprietary  v.  Brown,  33  Me.  309,  3  Gray's  Gas.  354;  Palmer 
V.  Dougherty,  33  Me.  502,  54  Am.  Dec.  636;  O'Linda  v.  Lothrop,  21 
Pick.  (Mass.)  292;  Robinson  v.  Myers,  67  Pa.  St.  9;  Spackman  v. 
Steidel,  88  Pa.  St.  453.  But  as  to  the  Pennsylvania  rule,  see  Bliem 
V.  Daubenspreck,  169  Pa.  St.  282;  Hancock  v.  Phila,delphia,  175  Pa. 
St.  124. 

221  Bissell  V.  New  York  Cent.  R.  Co.,  23  N.  Y.  61,  3  Gray's  Cas.  367; 
In  re  Ladue,  118  N.  Y.  213;  Anthony  v.  City  of  Providence,  18  R.  I. 
699;  Johnson  v.  Arnold,  91  Ga.  659.  See  Peck  v.  Denniston,  121 
Mass.  17. 

222  In  re  Robbins,  34  Minn.  99,  57  Am.  Rep.  40,  3  Gray's  Cas.  382;. 
Johnson  v.  Arnold,  91  Ga.  659. 

223  Dodd  V.  Witt,  139  Mass.  63,  3  Gray's  Cas.  380. 

(896) 


(3h.  19]  TRANSFER  INTER  VIVOS.  §   393 

.  SO  as  to  give  to  the  grantee  the  land  to  the  center  line  thereof, 
in  the  absence  of  a  contrary  intention,  is  a  question  on  which 
the  eases  are  not  in  accord.- ^^ 

§  393.     Appurtenances. 

The  effect  of  a  conveyance  of  land  in  certain  cases  as 
creating  an  easement  corresponding  to  a  pre-existing  quasi 
easement  has  been  previously  considered.-^^  As  to  the  effect 
of  a  conveyance  of  land,  not  as  creating  an  easement,  but  as 
conveying  an  easement  already  existing,  it  is  well  settled  that 
such  an  easement  will  pass  on  a  conveyance  of  the  land  to 
which  it  appertains, — that  is,  the  dominant  tenement, — even 
though  there  is  no  reference  to  the  specific  easement,  or  any 
statement  that  all  the  "appurtenances"  or  "privileges"  be- 
longing to  the  land  shall  pass  therewith.^^^ 

224  In  Massachusetts  it  is  held  that  the  same  rule  applies  to  pri- 
vate as  to  public  ways.  Fisher  v.  Smith,  9  Gray  (Mass.)  441,  3 
Gray's  Gas.  360;  Gould  v.  Eastern  R.  Co.,  142  Mass.  85.  See,  also. 
Witter  V.  Harvey,  1  McCord  (S.  C.)  67,  10  Am.  Dec.  650.  But  a 
contrary  intention  may,  of  course,  appear  from  the  terms  of  the 
conveyance.  Codman  v.  Evans,  1  Allen  (Mass.)  443;  Crocker  v. 
Getting,  166  Mass.  183.  And  see  Gushing  v.  Hathaway,  10  R.  I.  514. 
In  Maine  the  same  rule  does  not  apply  to  private  ways.  Bangor 
House  Proprietary  v.  Brown,  33  Me.  309,  3  Gray's  Gas.  354;  Ames 
V.  Hilton,  70  Me.  36.  As  to  the  law  in  New  \ork,  see  Mott  v.  Mott, 
68  N.  Y.  246. 

223  Ante,  §  317. 

226  Sheppard's  Touchstone,  89;  Go.  Litt.  121b;  Crosby  v.  Bradbury, 
20  Me.  61;  Shelby  v.  Chicago  &  E.  R.  Co.,  143  111.  385;  Lide  v.  Had- 
ley,  36  Ala.  627,  76  Am.  Dec.  338;  Jackson  v.  Trullinger,  9  Or.  393; 
National  Exchange  Bank  v.  Cunningham,  46  Ohio  St.  575;  Winslow 
V.  King,  14  Gray  (Mass.)  323;  Bowling  v.  Burton,  101  N.  C.  176; 
Cope  V.  Grant,  7  Pa.  St.  488. 

In  some  cases  the  use  of  the  word  "appurtenances"  in  connection 
with  the  conveyance  of  a  building  has  been  referred  to  as  extending 
the  import  of  the  conveyance,  as  where  there  was  a  conveyance  of 
a  house  or  mill  "with  appurtenances,"  in  which  cases  the  inclosure 
and  small  outbuildings  were  held  to  pass.     Ammidown  v.  Ball,   8 

(897) 
Real  Prop.— 57. 


I  393  REAL   PROPERTY.  [Ch.  19 

The  word  '^'appurtenance"  is  properly  confined  to  things 
of  an  incorporeal  character,  such  as  easements  or  profits  ft 
'prendre,  and  a  conveyance  of  land  "with  the  appurtenances" 
will  not  pass  land  other  than  that  described,  on  the  theory 
that  it  is  appurtenant  thereto,  or,  as  the  rule  is  usually  ex- 
pressed, ''land  cannot  be  appurtenant  to  land."^^'^  The  word 
"appurtenances"  may,  however,  it  appears,  be  shown  not  to 
have,  in  the  particular  case,  its  legal  meaning,  but  to  be  used 
in  a  different  sense,  such  as  "usually  enjoyed  with,"  and  so 
to  pass  land  other  than  that  specifically  described. ^^^  So, 
the  word  "appurtenances"  will  not  usually  extend  the  scope 
of  the  conveyance  so  as  to  include  things  of  a  chattel  char- 
acter, which  are  not  legally  part  of  the  land  conveyed,^^^  but 
they  may,  it  has  been  held,  be  shown  to  have  been  intended 
to  be  covered  by  the  term.^^^ 

Allen  (Mass.)  293;  State  v.  Burke,  66  Me.  127;  Cunningham  v. 
Webb,  69  Me.  92.  But  in  these  cases  the  effect  would,  it  seems, 
under  the  rule  previously  stated  (see  note  387),  have  been  the 
same  if  the  conveyance  had  contained  no  reference  to  the  "appur- 
tenances." 

227  Co.  Litt.  121b;  Harris  v.  Elliott,  10  Pet.  (U.  S.)  25;  Humphreys 
v.  McKissock,  140  U.  S.  304;  Leonard  v.  White,  7  Mass.  8,  5  Am.  Dec. 
19,  3  Gray's  Cas.  282;  Woodhull  v.  Rosenthal,  61  N.  Y.  382;  Ogden 
V.  Jennings,  62  N.  Y.  526;  St.  Louis  Bridge  Co.  v.  Curtis,  103  111. 
410;  Warren  v.  Blake,  54  Me.  276,  89  Am.  Dec.  748;  Wilson  v.  Beck- 
with,  117  Mo.  61;  Oliver  v.  Dickinson,  100  Mass.  114;  Cole  v.  Haynes, 
22  Vt.   588. 

228  See  Elphinstone,  Interpret,  of  Deeds,  188;  Hill  v.  Grange,  1 
Plowd.  164;  Whitney  v.  Olney,  3  Mason,  280,  Fed.  Cas.  No.  17,595; 
Hearn  v.  Allen,  Cro.  Car.  57;  Thomas  v.  Owen,  20  Q.  B.  Div.  225; 
Hill's  Lessee  v.  West,  4  Yeates  (Pa.)  142;  Ammidown  v.  Granite 
Bank,  8  Allen  (Mass.)   285. 

229  Ottumwa  Woolen  Mill  Co.  v.  Hawley,  44  Iowa,  57,  24  Am.  Rep. 
719;   Frey  v.  Drahos,  6  Neb.  1;   Scheldt  v.  Belz,  4  111.  App.  431. 

230  Redlon  v.  Barker,  4  Kan.  445;  Badger  Lumber  Co.  v.  Marion 
Water  Supply,  Electric  Light  &  Power  Co.,  48  Kan.  182,  30  Am.  St. 
Rep.  301;  Gorham  v.  Bastchester  Electric  Co..  31  Abb.  N.  C.  198,  29 
N.  Y.  Supp.  1094. 

(898) 


Ch.  19]  TRANSFER  INTER  VIVOS.  ^   394 

IV.     Covenants  fob  Title. 

The  conveyance  usually  contains  one  or  more  covenants  by 
the  grantor  as  to  the  validity  of  the  title  sought  to  be  con- 
veyed, on  which,  in  case  of  failure  of  title,  the  grantee  has 
a  right  of  action  for  damages.  The  recognized  covenants  are 
(1)  for  seisin,  (2)  for  right  to  convey,  (3)  against  incum- 
brances, (4)  for  quiet  enjoyment,  (5)  of  warranty,  and  (6)  for 
further  assurance. 

Covenants  for  seisin  and  right  to  convey,  which  are  sub- 
stantially equivalent,  constitute  in  some  states  merely  a  con- 
tract that  the  grantor  has  seisin  of  the  land,  but  more  usually 
they  are  regarded  as  a  declaration  that  he  has  the  estate  which 
he  undertakes  to  convey. 

The  covenant  against  incumbrances  is  usually  in  effect  a  con- 
tract that  there  is  no  outstanding  lien,  interest,  or  right  which 
may  affect  the  value  of  the  land,  although  a  fee-simple  estate 
passes  by  the  conveyance. 

The  covenants  for  quiet  enjoyment  and  of  warranty  are 
equivalent,  and  are  contracts  that  the  grantee  will  not  be 
evicted  by  title  paramount,  or  by  the  act  of  the  grantor. 

The  covenant  for  further  assurance  is  a  contract  to  execute 
any  instrument  necessary  to  perfect  the  title. 

The  benefit  of  covenants  for  quiet  enjoyment,  of  warranty, 
and  for  further  assurance  runs  with  the  land.  In  a  number  of 
the  states  of  this  country,  though  not  in  all,  the  benefit  of  the 
other  covenants  does  not  so  run. 

§  394.     General  considerations. 

In  most  conveyances  of  land  there  are  one  or  more  cove- 
nants by  the  grantor  as  to  the  title  to  the  premises,  under 
which  the  grantee  may,  in  case  of  failure  of  title,  obtain  in- 
demnity in  damages.  These  covenants  are  of  certain  recog- 
nized classes,  having,  as  a  rule,  fixed  legal  effects,  though 
these  may  be  varied  by  the  construction  placed  upon  the  cov- 
enant in  the  particular  case.^^^ 

231  See  Rawle,  Covenants  for  Title,   §  57.     The  following  outline 

(899) 


I   394  REAL  PROPERTY.  [Ch.   19 

In  the  earlier  stages  of  the  common  law  no  such  personal 
covenants  were  recognized,  but  the  feoffment  was  usually  at- 
tended with  a  "warranty."  This  common-law  warranty^ 
which,  taking  its  origin  in  the  obligation  of  the  feudal  lord 
to  protect  the  holding  of  his  tenant,  continued,  even  after  the 
statute  of  Quia  Em'ptores,  to  be  a  usual  incident  of  a  feoff- 
ment, was  in  its  nature  a  "covenant  real," — that  is,  com- 
pensation for  its  breach  was  awarded,  not  in  damages,  but 
in  kind,  by  a  judgment  in  favor  of  the  warrantee  or  his  heirs^ 
against  the  original  warrantor  or  his  heirs,  for  the  recovery 
of  other  lands  equal  in  value  to  those  of  which  the  warrantee 
had  been  deprived.  A  warranty,  operating,  as  it  did,  against 
the  heir  of  the  warrantor,  was,  after  the  statute  De  Bonis  and 
before  the  decision  in  Taltarum's  Case,  utilized  for  the  pur- 
pose, in  particular  cases,  of  barring  estates  tail,  and  in  the 
efforts  to  extend  its  effectiveness  in  this  direction  the  law  of 
the  subject  was  immensely  extended  and  complicated. ^^^  The 
remedy  on  a  warranty  was  available  only  in  connection  with 
freehold  estates,  and  consequently,  if  the  warranty  was  at- 
tached to  a  term  of  years,  or  if  the  grantee  of  a  freehold  es- 
tate was  evicted  for  a  term,  the  warrantee  could  not  re- 
cover.^^^  In  the  later  history  of  the  subject,  however,  there 
was  a  relaxation  of  this  rule  to  the  extent  that  when,  in  such 
a  case,  the  warranty  failed  as  a  covenant  real,  it  might  be 
construed  as  a  personal  covenant  on  which  an  action  for  dam- 
ages might  be  brought.  ^^^ 

After  the  introduction  of  conveyances  under  the  Statute 
of  Uses,  warranty,  which  was  in  its  origin  associated  with 

of  the  law  of  covenants  for  title  is  based  almost  entirely  upon  this 
most  admirable  work. 

232  See  Rawle,  Covenants,  e.  1,  where  the  nature  of  warranty  at 
common  law  is  clearly  stated.  See,  also,  1  Smith,  Lead.  Cas.  Eq.  (8th 
Ed.)  213,  American  notes  to  Spencer's  Case. 

233  Rawle,  Covenants,  §§  12,  113;  1  Smith,  Lead.  Cas.  Eq.  214. 

234  Pincombe  v.  Rudge,  Hob.  3g;  Williams  v.  Burrell,  1  C.  B.  402. 

(900) 


Ch.  19]  TRANSFER  INTER  VIVOS.  §   395 

the  transfer  by  feoffment,  was  gradually  supplanted  by  per- 
sonal covenants,  the  purpose  of  which  was  to  give  a  remedy 
in  damages  against  the  covenantor  in  case  of  failure  of  title, 
and  which  were  available  in  connection  with  leasehold,  as 
well  as  freehold,  estates,  and  warranty  was  finally  abolished 
by  statute  in  England  in  the  nineteenth  century.^^^ 

In  this  country,  settled  after  the  common-law  warranty  had 
lost,  to  a  considerable  extent,  its  importance  in  England,  that 
method  of  securing  the  grantee  against  loss  from  failure  of 
title  was  never,  to  any  extent,  utilized,  but  the  law  of  per- 
sonal covenants  for  title  has  been  developed  and  extended  to 
a  greater  extent  even  than  in  England,  where  the  particu- 
larity with  which  intending  purchasers  examine  the  title 
has  rendered  them  comparatively  superfluous. 

By  statute  in  some  states,  certain  covenants  for  title 
are  implied  from  the  use  of  particular  operative  words  in  a 
conveyance,  usually  "grant,  bargain,  and  sell,"  and  occasion- 
ally a  covenant  in  form  one  of  warranty  merely  is  by  statute 
declared  to  imply  certain  other  covenants  for  title.^^^ 

The  covenants  of  title  considered  in  the  following  sections 
are  "general"  covenants, — that  is,  they  are  in  terms  sufficient 
to  protect  the  covenantee  against  the  claims  of  all  persons 
whomsoever.  Covenants  may  be,  however,  and  frequently 
are,  "special"  in  character, — that  is,  they  are  so  expressed  as 
to  afford  protection  against  the  acts  of  the  covenantor  only, 
or  of  persons  claiming  under  him.^^^ 

§  395.     Covenant  for  seisin. 

The  covenant  by  the  grantor  that  he  is  lawfully  seised  of 
the  premises,  called  the  "covenant  of  seisin,"  has  different 

236  See  Rawle,  Covenants,  §§  9-14. 

236Rawle,  Covenants,  §§  285-287;  1  Stimson's  Am.  St.  Law,  § 
1501. 

237  Rawle,  Covenants,  §§  28,  29,  126. 

(901) 


§   395  REAL    PROPERTY.  [Ch.   19 

effects   in   different   jurisdictions.     "Seisin"    originally,    as 
before  stated,  meant  the  possession  of  land  by  one  having  or 
claiming  a  freehold  estate  therein,  either  by  himself  or  by 
another  in  his  behalf. ^^^     This  meaning  of  "seisin"  has  been 
adiopted  in  two  or  three  states  in  determining  the  effect  of 
the  covenant,  and  the  covenant  is  there  regarded  as  a  declara- 
tion by  the  grantor  that  he  is  in  possession,  claiming  such 
title  as  he  undertakes  to  convey,  which  is  accordingly  satis- 
fied by  his  claim  of  title,  and  is  not  broken  by  the  fact  that 
he  has  not  such  title,  though  it  is  broken  if  another  is  in  ad- 
verse possession  of  the  land.^^^     The  covenant,  thus  limited 
in  effect,  may  nevertheless  be  of  very  great  advantage  to  the 
grantee  in  states  which  still  recognize  the  doctrine  that  a  con- 
veyance  of   land   in  the   adverse    possession   of   another   is 
void;^^°  and  this  construction  of  the  covenant  presumably 
owes  its  origin  to  the  recognition  by  the  courts  of  the  prob- 
ability that  it  was  intended  to  secure  the  grantee  against  the 
possible  failure  of  the  conveyance  for  this  cause.^^^     In  the 
majority  of  states,  however,  as  in  England,  the  covenant  is 
construed  with  reference  to  the  meaning  which  the  words 
"seisin"  and  "seised"  acquired  after  the  Statute  of  Uses,^^^ 
and  it  amounts  to  a  covenant  that  the  grantor  has  the  estate, 
in  quantity  and  quality,  which  he  purports  to  convey.^''^    Ac- 

238  Ante,  §  15. 

239Marston  v.  Hobbs,  2  Mass.  439,  3  Am.  Dec.  61;  Raymond  v. 
Raymond,  10  Cush.  (Mass.)  134;  Cushman  v.  Blanchard,  2  Me.  268, 
11  Am.  Dec.  76;  Wilson  v.  Widenham,  51  Me.  566;  Backus'  Adm'rs  v. 
McCoy,  3  Ohio,  211,  17  Am.  Dec.  585;  Stambaugh  v.  Smith,  23  Ohio 
St.  584;  Wetzell  v.  Richcreelv,  53  Ohio  St.  62. 

240  See  post,  §  498. 

241  Rawle,  Covenants,  §§  47-54. 

242  Ante,  §  15. 

243  Parker  v.  Brown,  15  N.  H.  186;  Catlin  v.  Hurlburt,  3  Vt.  407; 
Lockwood  V.  Sturdevant,  6  Conn.  385;  Greenby  v.  Wilcocks,  2  Johns. 
(N.  Y.)  1,  3  Am.  Dec.  379,  3  Gray's  Cas.  598;  Real  v.  Hollister,  20 
Neb.  112;  Woods  v.  North,  6  Humph.  (Tenn.)  309,  44  Am.  Dec.  312; 
Pringle  v.  Witten's  Ex'rs,  1  Bay  (S.  C.)  256,  1  Am.  Dec.  612. 

(902) 


Ch     19]  TRANSFER  INTER  VIVOS.  §   3y(, 

cordingly,  the  covenant  is,  in  the  latter  chiss  of  states,  broken 
in  case  the  fee-simple  title  to  the  land  which  the  grantor  pur- 
ports to  convey,  or  to  a  part  thereof,  is  outstanding  in  a  third 
person,-^'*  or  if  he  has  not  such  an  interest  as  he  purports 
to  convey,  as  when,  while  purporting  to  convey  an  estate  in 
fee  simple,  the  gTantor  has  only  an  estate  in  fee  tail,^*^  or 
one  in  remainder.^^^  So  it  is  broken  if  a  tenant  in  com- 
mon purports  to  convey  the  whole  interest  in  the  land.-'*"  It 
has  also  been  regarded  as  broken  by  the  fact  that  things  an- 
nexed to  the  premises  are  subject  to  a  right  of  removal  in  a 
third  person,-^^  and  also  by  the  fact  that  rights  properly  ap- 
purtenant to  the  land,  or  which  purport  to  be  conveyed  there- 
with, such  as  a  right  of  flowage,  are  not  vested  in  the  grantor 
so  as  to  pass  with  the  land.^^^  The  covenant  is  not  broken 
by  the  existence  of  a  lien  on  the  land,-^*^  or  of  a  right  of  use 
or  profit  in  a  third  person,^^^ 

§  396.     Covenant  for  right  to  convey. 

The  covenant  that  the  grantor  has  a  right  to  convey  the 

'2**  Anderson  v.  Knox,  20  Ala.  156;  Zent  v.  Picken,  54  Iowa,  535; 
Abbott  V.  Rowan,  33  Ark.  593;  Cockrell  v.  Proctor,  65  Mo.  41;  Hunt 
V.  Raplee,  44  Hun  (N.  Y.)  149;  Wilson  v.  Forbes,  13  N.  C.  30;  Allen 
V.  Allen,  48  Minn.  462. 

245  Comstock  V.  Comstock,  23  Conn.  349. 

246  Mills  V.  Catlin,  22  Vt.  106. 

247  Downer's  Adm'rs  v.  Smith,  38  Vt.  464;  Sedgwick  v.  Hollenback, 
7  Johns.  (N.  Y.)  376. 

24SVan  Wagner  v.  Van  Nostrand,  19  Iowa,  427;  Mott  v.  Palmer,  1 
N.  Y.  564,  Finch's  Cas.  286. 

241' Traster  v.  Nelson's  Adm'r,  29  Ind.  96;  Walker  v.  Wilson,  IS 
Wis.  522;  Adams  v.  Conover,  87  N.  Y.  422,  41  Am.  Rep.  381. 

250  Fitzhugh  V.  Croghan,  2  J.  J.  Marsh.  (Ky.)  429,  19  Am.  Dec. 
139;  Sedgwick  v.  Hollenback,  7  Johns.  (N.  Y.)  376;  Rawle,  Cove- 
nants, §  59. 

25iWhitbeck  v.  Cook,  15  Johns.  (N.  Y.)  483,  8  Am.  Dec.  272; 
Moore  v.  Johnston,  87  Ala.  220;  Douglass  v.  Thomas,  103  Ind.  187; 
Kellogg  V.  Malin,  50  Mo.  496,  11  Am.  Rep.  426;  Blondeau  v.  Sheri- 
dan, 81  Mo.  545. 

(903) 


,g   397  REAL  PROPERTY.  [Ch.  19 

land  is  usually  equivalent  to  the  covenant  for  seisin,  which- 
ever view  of  the  operation  of  the  latter  covenant  may  be 
taken  in  the  particular  jurisdiction.^^-  There  may,  how- 
■ever,  be  a  right  to  convey^  though  there  be  no  seisin  or  title, 
as  when  the  conveyance  is  under  a  power.- ^^ 

^  397.     Covenant  against  incumbrances. 

An  "incumbrance,"  as  the  term  is  used  in  a  covenant  that 
the  premises  are  free  and  clear  of  all  incumbrances,  is  de- 
fined, in  a  general  way,  as  "every  right  to  or  interest  in  the 
land  which  may  subsist  in  third  persons,  to  the  diminution 
of  the  value  of  the  land,  but  consistent  with  the  passing  of 
the  fee  by  the  conveyance."^^^  A  lien-^^  is  an  incumbrance, 
whetheri  it  be  a  mortgage,-^^  a  judgment  lien,-^^  a  lien  for 
taxes,^^^  or  any  other  of  the  various  classes 'of  liens.^^^ 

252  Peters  v.  Bowman,  98  U.  S.  56;  Baldwin  v.  Timmins,  3  Gray 
(Mass.)  302;  Allen  v.  Say  ward,  5  Me.  227;  Willard  v.  Twitchell, 
1  N.  H.  177. 

253  Rawle,  Covenants,  §  66.  See  Devore  v.  Sunderland,  17  Ohio, 
52,  49  Am.  Dec.  442;   Slater  v.  Rawson,  6  Mete.   (Mass.)   439. 

254  Rawle,  Covenants,  §  75 ;  Prescott  v.  Trueman,  4  Mass.  630,  3 
Am.  Dec.  246;  Carter  v.  Denman's  Ex'rs,  23  N.  J.  Law,  260;  Kelsey 
v.  Remer,  43  Conn.  129,  21  Am.  Rep.  638;  Huyck  v.  Andrews,  113 
N.  Y.  81,  10  Am.  St.  Rep.  432;  Lafferty  v.  Milligan,  165  Pa.  St.  534. 

255  See  post,  Part  6. 

256  Bean  v.  Mayo,  5  Me.  94;  Brooks  v.  Moody,  25  Ark.  452;  Wyman 
V.  Ballard,  12  Mass.  304;  Corbett  v.  Wrenn,  25  Or.  305;  Funk  v. 
Voneida,  11  Serg.  &  R.  (Pa.)  109,  14  Am.  Dec.  617. 

237  Jenkins  v.  Hopkins,  8  Pick.  (Mass.)  346;  Holman  v.  Creag- 
miles,  14  Ind.  177;  Hall  v.  Dean,  13  Johns.  (N.  Y.)  105. 

258  Fuller  V.  Jillett  (C.  C.)  2  Fed.  30;  Crowell  v.  Packard,  35  Ark. 
348;  Cochran  v.  Guild,  106  Mass.  29,  8  Am.  Rep.  296;  Eaton  v.  Chese- 
hrough,  82  Mich.  214;  Campbell  v.  McClure,  45  Neb.  608;  Cadmus  v. 
Fagan,  47  N.  J.  Law,  549;  Plowman  v.  Williams,  6  Lea  (Tenn.)  268; 
Almy  V.  Hunt,  48  111.  45. 

259  So,  an  attachment  lien  (Kelsey  v.  Remer,  43  Conn.  129,  21 
Am.  Rep.  638,  and  Norton  v.  Babcock,  2  Mete.  [Mass.]  510)  ;  a  ven- 
dor's lien  (Thomas  v.  St.  Paul's  Methodist  Episcopal  Church,  86 
Ala.  138). 

(1)04) 


QY^    19]  TRANSFER  INTER  VIVOS.  ^   3«)7 

An  easement  is,  generally  speaking,  an  incumbrance,  as  in 
the  case  of  a  private  right  of  way,^^°  or  a  right  to  maintain 
a  drain  or  artificial  watercourse,^^^  or  a  right  to  flow  land.-^- 
An  easement,  however,  which  is  created  by  the  conveyance 
of  a  quasi  servient  tenemeut,^^^  is  not  regarded  as  within  a 
covenant  against  incumbrances  in  such  a  conveyance,  and  the 
effect  of  the  conveyance  in  creating  an  easement  in  favor  of 
the  grantor  is  not  affected  by  the  fact  that  it  contains  a  cove- 
nant against  incumbrances.  ^^^  A  natural  right  in  an  owner 
of  neighboring  land,  such  as  a  right  to  the  uninterrupted  flow 
of  a  stream,  is  not  within  the  covenant,^^^  but  a  right  in  a 
third  person  to  interfere  with  the  natural  right  to  the  cus- 
tomary flow  of  a  stream  is,  it  seems,  an  incumbrance.^''®' 

In  a  majority  of  the  states  a  highway  is  regarded  as  an  in- 
cumbrance,^®" though  a  different  view  is  taken  in  others.^ ®^ 
A  railroad  right  of  way  is  also  an  incumbrance.^®^ 

260  Mitchell  v.  Warner,  5  Conn.  497;  Blake  v.  Everett,  1  Allen 
(Mass.)  248;  Wilson  v.  Cochran,  46  Pa.  St.  229;  McGowen  v.  Myers, 
60  Iowa,  256. 

26iPrescott  V.  White,  21  Pick.  (Mass.)  341,  32  Am.  Dec.  266; 
Smith  V.  Sprague,  40  Vt.  43;  McMuUin  v.  Wooley,  2  Lans.  (N.  Y.) 
394. 

262Scriver  v.  Smith,  100  N.  Y.  471,  53  Am.  Rep.  224;  Patterson 
V.  Sweet,  3  111.  App.  550.  But  see  as  to  the  rule  in  Maine  and  Mas- 
sachusetts, as  affected  by  the  flowage  acts  of  those  states,  Rawle, 
Covenants,  §  83. 

263  See  ante,  §  317. 

264Harwood  v.  Benton,  32  Vt.  724;  Dunklee  v.  Wilton  R.  Co.,  24 
N.  H.  489.     See  Rawle,  Covenants,  §  85. 

L'on  prescott  v.  Williams,  5  Mete.  (Mass.)  429. 

26GHuyck  V.  Andrews,  113  N.  Y.  81,  10  Am.  St.  Rep.  432;  Morgan 
V.  Smith,  11  111.  199.  But  see  Cary  v.  Daniels,  8  Mete.  (Mass.)  466, 
41  Am.  Dec.  532. 

2G7  Kellogg  V.  Ingersoll,  2  Mass.  101;  Copeland  v.  McAdory,  100 
Ala.  553;  Hubbard  v.  Norton,  10  Conn.  423;  Herrick  v.  Moore,  19  Me. 
313;  Butler  v.  Gale.  27  Vt.  739;  Burk  v.  Hill,  48  Ind.  52,  17  Am. 
Rep.  731. 

268  Patterson  v.  Arthurs,  9  Watts  (Pa.)  152;  Wilson  v.  Cochran, 
46  Pa.  St.  233;   Harrison  v.  Des  Moines  &  Ft.  D.  Ry.  Co.,  91  Iowa, 

(905) 


R  397  REAL  PROPERTY.  [Ch.   19' 

A  covenant  as  to  the  use  of  land,  or  a  restriction  upon  its 
use,  whether  enforceable  at  law  or  in  equity,  is  a  breach  of  the 
covenant  against  incumbrances,^'^''  as  is  an  obligation  upon 
the  owner  of  the  land  to  maintain  a  fence.-'^^  A  right  to  take 
profits  in  the  shape  of  timber  or  minerals  from  the  land  is 
also  an  incumbrance.  ^'^^ 

The  existence  of  a  right  of  dower,  whether  inchoate  or 
consummate,  has  been  usually  recognized  as  a  breach  of  the 
covenant.^^^  A  lease  for  years  outstanding  in  a  third  per- 
son is  also  an  incumbrance,^^^  except  when  the  covenantee 
purchased  the  land  with  notice  of  the  lease,  in  which  case 
it  is  regarded  as  a  benefit,  rather  than  a  detriment,  and  so- 
not  an  incumbrance. ^"^^ 

114;  Deacons  v.  Doyle,  75  Va.  258;  Kutz  v.  McCune,  22  Wis.  628,  99 
Am.  Dec.  85.     Compare  Trice  v.  Kayton,  84  Va.  217. 

269  Quick  V.  Taylor,  113  Ind.  540;  Kellogg  v.  Malin,  50  Mo.  496,  11 
Am.  Rep.  426;  Beach  v.  Miller,  51  111.  206,  2  Am.  Rep.  290;  Farring- 
ton  V.  Turtelott  (C.  C.)  39  Fed.  738.  Contra,  Smith  v.  Hughes,  50' 
Wis.  627. 

2T0  Locke  V.  Hale,  165  Mass.  20;  Foster  v.  Foster,  62  N.  H.  46; 
Docter  v.  Darling,  68  Hun  (N.  Y.)  70;  Greene  v.  Creighton,  7  R.  I.- 
1;  Halle  v.  Newbold,  69  Md.  265. 

271  Bronson  v.  Coffin,  108  Mass.  175,  11  Am.  Rep.  335,  2  Gray's  Cas.. 
328;  Burbank  v.  Pillsbury,  48  N.  H.  475,  97  Am.  Dec.  633. 

272  Spurr  V.  Andrew,  6  Allen  (Mass.)  420;  Stambaugh  v.  Smith, 
23  Ohio  St.  584;  Cathcart  v.  Bowman,  5  Pa.  St.  317. 

273  Porter  v.  Noyes,  2  Me.  22,  11  Am.  Dec.  30 ;  Runnels  v.  Webber,. 

59  Me.  488;  Bigelow  v.  Hubbard,  97  Mass.  195;  Walker's  Adm'r  v. 
Deaver,  79  Mo.  664;  Barnett  v.  Gaines,  8  Ala.  373;  Russ  v.  Perry,. 
49  N.  H.  547;  Carter  v.  Denman's  Ex'rs,  23  N.  J.  Law,  260. 

274  Clark  V.  Fisher,   54  Kan.   403;    Fritz  v.  Pusey,   31  Minn.   368; 
Grice  v.  Scarborough,  2  Speers  (S.  C.)  649,  42  Am.  Dec.  391;  Sawyer 
V.  Little,  4  Vt.  414;  Batchelder  v.  Sturgis,  3  Cush.  (Mass.)   201;   Ed- 
wards V.  Clark,  83  Mich.  246;  Demars  v.  Koehler,  60  N.  J.  Law,  314. 

275Rawle,  Covenants,  §§  77,  78;  Lindley  v.  Dakin,  13  Ind.  388; 
Kellum  v.  Berkshire  Life  Ins.  Co.,  101  Ind.  455;  Demars  v.  Koehler, 

60  N.  J.  Law,  314;  James  v.  Lichfield,  L.  R.  9  Eq.  51.  And  see 
Pease  v.  Christ,  31  N.  Y.  141.  But  see,  to  the  contrary,  Edwards  v. 
Clark,  83  Mich.  246. 

(906) 


Ch.    19]  TRANSFER  INTER  VIVOS.  §   397 

As  stated  bv  the  loading  authority  on  the  subject,  the  legal 
character  of  the  outstanding  right  or  interest  is  not  always 
sufficient  to  determine  whether  it  constitutes  an  incumbrance, 
within  the  particular  covenant  in  question,  but  in  a  certain 
class  of  cases  the  question  must  "be  determined  by  reference 
to  the  subject-matter  of  the  contract,  the  relation  of  the  par- 
ties to  it  and  to  each  other,  the  notice  on  the  part  of  the  pur- 
chaser, and,  to  some  extent,  the  local  usdge  and  habit  of 
the  country."-^ ^  Thus,  as  just  stated,  notice  to  the  pur- 
chaser of  an  existing  lease  may  be  decisive  as  to  whether  it 
is  an  incumbrance,  and  likewise  his  knowledge  of  an  ease- 
ment has  been  held  to  show  that  it  was  not  within  the  scope 
of  the  covenant.^'"  So,  in  determining  whether  a  certain 
incumbrance  was  intended  to  be  within  the  covenant,  the 
whole  conveyance  may,  it  seems,  be  considered,  and  not  mere- 
ly the  clause  containing  the  covenant.  Thus,  when  the  gran- 
tee assumes  a  mortgage  on  the  land,  the  existence  of  such 
mortgage  is  not  a  breach  of  the  covenant,  though  not  express- 
ly excepted  therefrom,-'''^  and  even  in  states  where  a  highway 
is  regarded  as  an  incumbrance,  though  a  conveyance  of  land 
as  bounded  by  a  highway  passes  the  land  to  the  center  of  the 
highway,  subject  to  the  highway  use,  the  grantor  is  not  liable 
under  his  covenant  on  account  of  such  highway.^ '^^ 

But  though  the  question  of  notice  to  the  grantee  may  be 
important  in  determining  whether  an  outstanding  right  is  an 
incumbrance,  it  is  no  defense  to  an  action  on  the  covenant 
that  he  knew  of  the  incumbrance.^**^     Xor  is  extraneous  evi- 

276  Rawle,  Covenants,  §  85. 

277  Janes  v.  Jenkins,  34  Md.  1;  Kutz  v.  McCune,  22  Wis.  628,  99 
Am.  Dec.  85;  Memmert  v.  McKeen,  112  Pa.  St.  315.  See  Barre  v. 
Fleming,  29  W.  Va.  314. 

278  Freeman  v.  Foster,  55  Me.  508;  Watts  v.  Welman,  2  N.  H.  458. 
270  Frost  V.  Angier,  127  Mass.  212;  Patten  v.  Fitz,  138  Mass.  456; 

Holmes  v.  Danforth,  83  Me.  139;  City  of  Cincinnati  v.  Brachman,  35 
Ohio  St.  289. 

^su  Rawle,  Covenants,  §  88;  Levett  v.  Withrington,  Lutw.  97;  Funk 

(907) 


§  398  REAL  PROPERTY.  [Ch.  19 

dence  properly  admissible  at  law  to  show  that  there  was  an 
intention  to  except  a  certain  incumbrance  from  the  cu\e- 
nant,^^^  though  a  mistake  in  this  regard  may  be  the  subject 
for  a  reformation  in  a  court  of  equity,  or  in  a  court  of  law 
having  equitable  powers.-^ ^ 

§  398.  Covenants  for  quiet  enjoyment  and  of  warranty. 

The  covenant  that  the  covenantee  shall  quietly  enjoy  the 
premises  conveyed  without  disturbance,  and  the  covenant  to 
warrant  and  defend  the  premises,  termed,  respectively,  the 
covenants  for  "quiet  enjoyment"  and  "of  warranty,"  are  sub- 
stantially similar  in  elfect,  except  when  some  variation  is  in- 
troduced by  the  particular  language  used.^^^ 

The  modern  covenant  of  warranty,  by  which  one  covenants 
that  he  will  warrant  and  defend  the  premises  unto  the  gran- 
tee against  all  lawful  claims  by  third  persons,  is  entirely  dif- 
ferent from  the  old  common-law  warranty,  and  is  merely  a 

V.  Voneida,  11  Serg.  &  R.  (Pa.)  112,  14  Am.  Dec.  617;  Hubbard  v. 
Norton,  10  Conn.  422,  431;  Grice  v.  Scarborough,  2  Speers  (S.  C.) 
649,  42  Am.  Dec.  391;  Huyck  v.  Andrews,  113  N.  Y.  81,  10  Am.  St. 
Rep.  432;  Beach  v.  Miller,  51  111.  206,  2  Am.  Rep.  290;  Burk  v.  Hill, 
48  Ind.  52,  17  Am.  Rep.  731;  Yancey  v.  Tatlock,  93  Iowa,  386;  Kel- 
logg V.  Malin,  50  Mo.  496,  11  Am.  Rep.  426;  Burr  v.  Lamaster,  30 
Neb.  688,  27  Am.  St.  Rep.  428;  Long  v.  Moler,  5  Ohio  St.  272. 

281  Rawle,  Covenants,  §  88,  p.  113,  note;  Holley  v.  Younge,  27 
Ala.  203;  Spurr  v.  Andrew,  6  Allen  (Mass.)  420;  Flynn  v.  Bourneuf, 
143  Mass.  277,  58  Am.  Rep.  135;  Long  v.  Moler,  5  Ohio  St.  271; 
Butler  V.  Gale,  27  Vt.  739;  Edwards  v.  Clark,  83  Mich.  246;  Grice  v. 
Scarborough,  2  Speers  (S.  C.)  649,  42  Am.  Dec.  391.  In  Indiana 
such  evidence  has,  however,  always  been  admitted.  Allen  v.  Lee, 
1  Ind.  58,  48  Am.  Dec.  352;  Pitman  v.  Conner,  27  Ind.  337.  So  in 
Illinois.     Sidders  v.  Riley,  22  111,  109. 

282  Rawle,  Covenants,  §  88,  p.  112;  Haire  v.  Baker,  5  N.  Y.  357; 
Taylor  v.  Oilman,  25  Vt.  413;  Van  Wagner  v.  Van  Nostrand,  19 
Iowa,  427.  , 

283  Rawle,  Covenants,  §  114;  Copeland  v.  McAdory,  100  Ala.  553; 
Bostwick  V.  Williams,  36  111.  65,  85  Am.  Dec.  385;  Mitchell  v.  War- 
ner, 5  Conn.  497;   Kramer  v.  Carter,  136  Mass.  504. 

(908) 


CIj    19"]  TRANSFER  INTER  VIVOS.  §  398 

personal  covenant,  a  breach  of  which  entitles  one  to  the  re- 
covery of  damages.  It  is  not  recognized  in  England,  and  ap- 
pears to  have  arisen  in  this  country  from  the  fact  that  the 
early  conveyances  contained  both  personal  covenants  and  a 
clause  in  the  form  of  the  common-law  warranty,  and  that  this 
latter,  as  it  was  no  longer  utilized  as  a  real  covenant,  became 
incorporated  in  the  clause  containing  the  personal  covenants, 
and  so  became  itself  a  covenant  of  that  character.^^* 

A  covenant  for  quiet  enjoyment,  when  accompanying  a 
lease  for  years,  is,  as  before  stated,  broken  only  by  an  evic- 
tion by  the  lessor  or  by  a  third  person  under  title  para- 
mount.^^^  So,  when  such  a  covenant,  or  a  covenant  of  war- 
ranty, occurs  in  a  conveyance  in  fee,  there  can  be  no  recov- 
ery unless  there  is  an  eviction  either  by  the  grantor^^®  or  by 
a  third  person  under  lawful  claim  of  title.^^^  Accordingly  it 
is  not  broken  by  a  tortious  disturbance  or  eviction  by  a  stran- 
ger; this  being  something  beyond  the  control  of  the  grantor, 
and  for  which  the  grantee  has  his  remedy  against  the  wrong- 
doer.^^^  A  tortious  eviction  by  the  covenantor,  however,  con- 
stitutes a  breach  of  the  .covenant,^^^  though  his  wrongful  en- 

284Rawle,  Covenants,  §§  110-114. 

285  See  ante,  §  43  (b). 

286  See  post,  note  289. 

287Bostwick  V.  Williams,  36  111.  35,  85  Am.  Dec.  385;  Knapp  v. 
Town  of  Marlboro,  34  Vt.  235;  Burrus  v.  Wilkinson,  31  Miss.  537; 
Kent  V.  Welch,  7  Johns.  (N.  Y.)  258,  5  Am.  Dec.  266;  Johnson  v. 
Nyce's  Ex'rs,  17  Ohio,  66,  49  Am.  Dec.  444;  McGrew  v.  Harmon,  164 
Pa.  St.  115;  Davis  v.  Smith,  5  Ga.  274,  48  Am.  Dec.  279. 

2S8  Hayes  v.  Bickerstaff,  Vanghan,  118;  Noonan  v.  Lee,  2  Black 
(U.  S.)  499;  Gardner  v.  Keteltas,  3  Hill  (N.  Y.)  330;  Barry  v.  Guild, 
126  111.  439;  Hoppes  v.  Cheek,  21  Ark.  585;  Playter  v.  Cunningham, 
21  Cal.  229;  Chestnut  v.  Tyson,  105  Ala.  149.  But  a  covenant 
against  the  acts  of  a  certain  person  applies  to  his  tortious,  as  well 
as  his  rightful,  acts.  Rawle,  Covenants,  §  128;  Foster  v.  Mapes,  Cro. 
Eliz.  212. 

289  Rawle,  Covenants,  §  128;  Sedgwick  v.  Hollenback,  7  Johns. 
(N.  Y.)  376;  Akerly  v.  Vilas,  23  Wis.  207,  99  Am.  Dec.  165. 

(909) 


§   398  REAL  PROPERTY.  [Ch.  19 

try  on  the  premises  without  claiming  title,  or  without  doing 
such  acts  as  amount  to  an  assertion  of  title,  is  regarded  as  a 
mere  trespass  not  amounting  to  an  eviction.^^^  A  taking  of 
the  land  under  the  power  of  eminent  domain  is  not  within 
the  scope  of  the  covenant,  which  is  regarded  as  directed 
against  defects  of  title  only.^^^ 

An  eviction  constituting  a  breach  of  one  of  these  covenants 
may  be  actual  or  constructive,  the  first  involving  a  withdrawal 
by  the  covenantee  from  the  possession  of  the  land,  the  latter 
not  involving  any  loss  of  the  possession.  To  constitute  an 
actual  eviction,  the  dispossession  need  not  be  under  legal 
process,^^^  nor  need  there  be  any  judicial  decision  in  favor 
■of  the  holder  of  the  paramount  title,^^^  it  being  sufiicient  that 
the  claim  is  actually  asserted,-''^  that  it  is  valid,^^^  and  that 
the  covenantee  yields  thereto. ^^'^ 

290  Crosse  v.  Young,  2  Show.  425;  Claunch  v.  Allen,  12  Ala.  159; 
Avery  v.  Dougherty,  102  Ind.  443,  52  Am.  Rep.  680.  See  ante,  § 
51. 

291  Rawle,  Covenants,  §  129;  Frost  v.  Earnest,  4  Whart.  (Pa.) 
86;  Brimmer  v.  City  of  Boston,  102  Mass.  19;  Cooper  v.  Bloodgood, 
32  N.  J.  Eq.  209;  Stevenson  v.  Loehr,  57  111.  509,  11  Am.  Rep.  36; 
Folts  V.  Huntley,  7  Wend.  (N.  Y.)  210. 

292  Rawle,  Covenants,  §  132;  Foster  v.  Pierson,  4  Term  R.  617; 
Greenvault  v.  Davis,  4  Hill  (N.  Y.)  645;  McGary  v.  Hastings,  39 
Cal.  360,  2  Am.  Rep.  456;  Green  v.  Irving,  54  Miss.  450,  28  Am.  Rep. 
360;  Hodges  v.  Latham,  98  N.  C.  239,  2  Am.  St.  Rep.  333. 

293  Hamilton  v.  Cutts,  4  Mass.  350,  3  Am.  Dec.  222;  Mason  v. 
Cooksey,  51  Ind.  519;  Dugger  v.  Oglesby,  99  111.  405. 

204  There  can  be  no  eviction  unless  the  adverse  claim  is  actually 
asserted,  and  consequently  the  covenant  is  not  broken  if  the  cov- 
enantee yields  possession  before  any  assertion  of  such  claim.  Axtel 
V.  Chase,  83  Ind.  546;  Hester  v.  Hunnicutt,  104  Ala.  282;  Green  v. 
Irving,  54  Miss.  450,  28  Am.  Rep.  360;  McGrew  v.  Harmon,  164  Pa. 
St.  122;  Kellog  v.  Piatt,  33  N.  J.  Law,  328;  Morgan  v.  Henderson, 
2  Wash.  T.  367;   Rawle,  Covenants,  §  135. 

205  See  Rawle,  Covenants,  §  136,  and  cases  cited   ante,  note  287. 
20G  Hamilton  v.  Cutts,  4  Mass.  350,  3  Am.  Dec.  222;  Axtel  v.  Chase, 

83  Ind.  546;   Gunter  v.  Williams,  40  Ala.  561;   Allis  v.  Nininger,  25 
Minn.  525;   Lambert  v.  Estes,  99  Mo.  604;   Clements  v.  Collins,  59 

,(910) 


Ch.  19]  TRANSFER  INTER  VIVOS.  §   399 

A  constructive  eviction  occurs  when,  upon  the  assertion  of 
the  superior  title,  the  covenantee,  instead  of  yielding  pos- 
session to  the  hostile  claimant,  buys  in  such  title,  or  accepts 
a  lease  from  the  holder  thereof.^^^  A  constructive  eviction 
^Iso  occurs  when  the  covenantee  is  unable,  upon  receiving  the 
-conveyance,  to  obtain  possession  of  the  land,  owing  to  the 
fact  that  another  person,  having  a  superior  title  thereto,  is 
in  possession,  it  being  considered  unnecessary,  in  such  a  case, 
that  the  covenantee  should  be  compelled  to  take  forcible  pos- 
session in  order  that  he  himself  may  be  ejected,  or  to  bring 
a  suit  for  the  land,  which  would  necessarily  result  adversely 
to  him.^^^ 

§  399.     Covenant  for  further  assurance. 

The  covenant  by  the  grantor  to  make  such  other  assurances 
as  may  be  necessary  to  perfect  the  title  is  less  extensively 
used  in  the  United  States  than  any  of  the  other  covenants 
for  title,  though  its  importance  to  the  purchaser,  it  is  said, 

Ga.   124;    Wilson  v.   Cochran,   46   Pa.   St.   229;    Green   v.    Irving,   54 
Miss.  450,  28  Am.  Rep.  337;  Kramer  v.  Carter,  136  Mass.  504. 

297  Rawle,  Covenants,  §  142  et  seq.;  Sprague  v.  Baker,  17  Mass. 
590;  Dillahunty  v.  Little  Rock  &  Ft.  S.  Ry.  Co.,  59  Ark.  629;  Mc- 
€onnell  v.  Downs,  48  111.  271;  McGary  v.  Hastings,  39  Cal.  360,  2 
Am.  Rep.  456;  Hodges  v.  Latham,  98  N.  C.  239,  2  Am.  St.  Rep.  333; 
Loomis  V.  Bedel,  11  N.  H.  74;  Clark  v.  Mumford,  62  Tex.  531;  Amos 
V.  Cosby,  74  Ga.  793.  See  Tucker  v.  Cooney,  34  Hun,  227,  102  N.  Y. 
719;  Stewart  v.  Drake,  9  N.  J.  Law,  139,  Finch's  Cas.  1100.  In  one 
or  two  states  a  different  view  is  taken.     Dyer  v.  Britton,  53  Miss. 

270;  Huff  V.  Cumberland  Valley  Land  Co.,  17  Ky.  Law  Rep.  213,  30 
S.  W.  660. 

29S  Rawle,  Covenants,  §  138  et  seq.;  Cloake  v.  Hooper,  Freem.  122; 
Grist  V.  Hodges,  14  N.  C.  200;  Peters  v.  Bowman,  98  U.  S.  56;  Banks 

V.  Whitehead,  7  Ala.  83;  Shattuck  v.  Lamb,  65  N.  Y.  499;  Moore  v. 

Vail,  17  111.  185;   Cummins  v.  Kennedy,  3  Litt.    (Ky.)    118,  14  Am. 

Dec.  45;  Sheffey's  Ex'r  v.  Gardiner,  79  Va.  313;  Witty  v.  Hightower, 

12  Smedes  &  M.  (Miss.)   478;  Murphy  v.  Price,  48  Mo.  247;  Heyn  v. 

Ohman,  42  Neb.  693. 

(911) 


§   400  REAL  PROPERTY.  [Ch.  1') 

''can  liardlj  be  overrated."^*^'^  Under  this  covenant,  the 
covenantor  may  be  required  to  do  snck  further  acts  as  may 
be  necessary  on  his  part  to  perfect  the  title  which  the  con- 
veyance purports  to  pass,  but  the  covenantee  cannot  demand 
that  he  do  acts  which  are  unnecessary,  or  which  it  is  impos- 
sible for  him  to  do.  The  remedy  under  this  covenant  is- 
more  often  by  a  suit  for  specific  performance  than  by  an 
action  of  damages,  as  in  the  case  of  the  other  covenants.^*^" 

§  400.     The  measure  of  damages. 

In  an  action  for  a  breach  of  a  covenant  fo?  seisin  or  for 
right  to  convey,  the  measure  of  damages  is,  it  is  agTeed,  the 
amount  of  the  consideration  paid  by  the  grantee,  usually  with 
interest,  such  consideration  being  presumably  the  value  of 
the  land  at  the  time  of  the  sale,  with  a  view  to  which  the- 
covenant  Avas  made.^"^  In  case  the  breach  is  as  to  part  of 
the  premises  only,  the  recovery  is  a  proportionate  part  of  the 
consideration.^"^ 

290Rawle,  Covenants  for  Title,  §  98.  See  Cochran  v.  Pascault, 
54  Md.  1. 

sooRawle,  Covenants,  §§  99-lOy.  The  fact  that  this  covenant  may 
be  enforced  by  specific  performance,  while  the  other  covenants  for 
title  cannot,  is  the  reason,  as  stated  by  Mr.  Rawle,  of  its  great  value 
to. the  purchaser. 

301  Rawle,  Covenants,  §  158  et  seq.;  Bender  v.  Promberger,  4  Dall. 
(Pa.)  442;  Pitcher  v.  Livingston,  4  Johns.  (N.  Y.)  1;  Marston  v. 
Hobbs,  2  Mass.  433,  3  Am.  Dec.  61;  Nichols  v.  Walter,  8  Mass.  243; 
Mitchell  V.  Hazen,  4  Conn.  516,  10  Am.  Dec.  169;  Willson  v.  Willson, 
25  N.  H.  229,  57  Am.  Dec.  320;  Logan  v.  Moulder,  1  Ark.  313,  33  Am. 
Dec.  338;  King  v.  Gilson's  Adm'x,  32  111.  348,  83  Am.  Dec.  269;  Cum- 
mins V.  Kennedy,  3  Litt.  (Ky.)  118,  14  Dec.  45;  Backus'  Adm'rs 
V.  McCoy,  3  Ohio,  211,  17  Am.  Dec.  585;  Shorthill  v.  Ferguson,  44 
Iowa,  249;  Park  v.  Cheek,  4  Cold.  (Tenn.)  20.  As  to  interest,  see 
Rawle,  Covenants,  §  196. 

302Cushman  v.  Blanchard,  2  Me.  266,  11  Am.  Dec.  76;  Hubbard 
V.  Norton,  10  Conn.  422;  Bibb  v.  Freeman,  59  Ala.  612;  Weber  v. 
Anderson,  73  111.  439;  Wright  v.  Nipple,  92  Ind.  310;  Scantlin  v.  Al- 
lison, 12  Kan.  85;  Cornell  v.  Jackson,  3  Cush.   (Mass.)   506;  Adkins 

(912) 


Q^    5^9"]  TRANSFER  INTER  VIVOS.  §   400 

The  measure  of  damages  for  a  breach  of  a  covenant  for 
quiet  enjoyment  or  of  warranty  is,  by  the  weight  of  au- 
thority, the  same  as  that  for  breach  of  the  covenants  of  seisin 
or  of  right  to  convey, — that  is,  the  value  of  the  land  at  the 
time  of  the  conveyance,  as  measured  by  the  consideration 
paid,  without  reference  to  any  increase  in  value,  whether 
caused  by  the  development  of  the  neighborhood  or  the  im- 
provement of  the  land  itself.^*^^  In  some  of  the  New  Eng- 
land states,  however,  the  covenants  for  quiet  enjoyment  and 
of  warranty  are  regarded  as  intended  to  indemnify  the 
covenantee  for  any  loss  suffered  by  him,  and  as  consequently 
entitling  him  to  damages  to  the  extent  of  the  value  of  the 
land  at  the  time  of  the  eviction.^*^^  Such  a  rule  may  involve 
a  very  great  burden  upon  one  who  sells  land  his  title  to 
which  is  defective,  though  he  believes  it  to  be  good,  he  being 
liable  for  the  cost  of  all  improvements,  however  great,  made 
by  his  grantee,  as  well  as  for  any  increase  in  value  arising 
from  gTOwth  of  population  and  the  like  causes.^"^ 

The  covenant  against  incumbrances  is  considered  as  one 
for  indemnity  only,  and  the  covenantee  can  recover  no  more 
than  what  he  was  compelled  to  pay  in  order  to  extinguish 

V.  Tomlinson,  121  Mo.  487;  Staats  v.  Ten  Eyck's  Ex'rs,  3  Gaines 
(N.  Y.)  Ill,  2  Am.  Dec.  254;  Beaupland  v.  McKeen,  28  Pa.  St.  124, 
70  Am.  Dec.  115. 

3'i:  Rawle,  Covenants  for  Title,  §  164;  Burton  v.  Reeds,  20  Ind. 
87;  Weber  v.  Anderson,  73  111.  439;  Winnipiseogee  Paper  Co.  v. 
Eaton,  65  N.  H.  13;  Bennet  v.  Jenkins,  13  Johns.  (N.  Y.)  50;  Brown 
V.  Dickerson,  12  Pa.  St.  372;  Swafford  v.  Whipple,  3  G.  Greene 
(Iowa)  261,  54  Am.  Dec.  498;  Clark  v.  Parr,  14  Ohio,  118,  45  Am. 
Dec.  529;  Elliott  v.  Thompson,  4  Humph.  (Tenn.)  99,  40  Am.  Dec. 
630. 

304  Horsf ord  v.  Wright,  Kirby  (Conn.)  3,  1  Am.  Dec.  8;  Gore  v. 
Brazier,  3  Mass.  523,  3  Am.  Dec.  182;  Cecconi  v.  Rodden,  147  Mass. 
64;  Park  v.  Bates,  12  Vt.  381,  36  Am.  Dec.  347;  Williamson  v.  Wil- 
liamson, 71  Me.  442. 

305  See  Rawle,   Covenants,   §§   165-171. 

(913) 
Real  Prop. — 58. 


e  401  REAL    PROPERTY.  [Ch.  19 

the  outstanding  incumbrance,^*'^  or,  in  case  lie  could  not  so 
extinguish  it,  the  amount  of  injury  which  he  may  be  con- 
sidered to  have  suffered  from  its  existence.^*''^  If  no  loss  has 
been  sustained,  however,  he  may  recover  nominal  damages, 
since  the  covenant  is  regarded  as  broken  as  soon  as  made,  if 
there  is  any  outstanding  incumbrance.^"^  In  those  states  in 
which  the  recovery  on  a  covenant  for  quiet  enjoyment  or  of 
warranty  is  limited  to  the  amount  of  the  consideration  paid, 
the  recovery  for  breach  of  the  covenant  against  incumbrances 
is  likewise  so  limited,  no  matter  what  expenditure  or  loss  the 
covenantee  may  have  incurred  on  account  of  the  incum- 
brance.^'^'* 

§  401.     Covenants  running  with  the  land. 

The  benefit  of  a  covenant  for  title  until  breach  runs  with 
the  land.^^*'     Upon  breach,  the  covenant  is  changed  into  a 

306  Rawle,  Covenants,  §  188  et  seq.;  Delavergne  v.  Norris,  7 
Johns.  (N.  Y.)  358,  5  Am.  Dec.  281;  Mitchell  v.  Hazen,  4  Conn.  495, 
10  Am.  Dec.  169;  Amos  v.  Cosby,  74  Ga.  793;  Reed  v.  Pierce,  36  Me. 
455,  58  Am.  Dec.  761;  McDowell  v.  Milroy,  69  111.  498;  Kellogg  v. 
Malin,  62  Mo.  429;  Corbett  v.  Wrenn,  25  Or.  305;  Eaton  v.  Lyman, 
30  Wis.  41;  Johnson  v.  Collins,  116  Mass.  392;  Hartshorn  v.  Cleve- 
land, 52  N.  J.  Law,  473;  Myers  v.  Brodbeek,  110  Pa.  St.  198.  See 
Guthrie  v.  Russell,  46  Iowa,  269,  26  Am.  Rep.  135. 

307  Rawle,  Covenants,  §§  190,  191;  Mitchell  v.  Stanley,  44  Conn. 
312;  Morgan  v.  Smith,  11  111.  194;  Kostendader  v.  Pierce,  37  Iowa, 
645;  Wetherbee  v.  Bennett,  2  Allen  (Mass.)  428;  Mackey  v.  Harmon, 
34  Minn.  168;  Willson  v.  Willson,  25  N.  H.  229,  57  Am.  Dec.  320; 
Kellogg  V.  Malin,  62  Mo.  429. 

308  Briggs  V.  Morse,  42  Conn.  258;  Stowell  v.  Bennett,  34  Me.  422; 
Wilcox  V.  Musche,  39  Mich.  101;  Smith  v.  Jefts,  44  N.  H.  482; 
Walker's  Adm'r  v.  Deaver,  79  Mo.  664;  Funk  v.  Voneida,  11  Serg.  & 
R.  (Pa.)  109,  14  Am.  Dec.  617;  Noonan  v.  Ilsley,  21  Wis.  138;  Rawle, 
Covenants,  §§  188,  189. 

309  Rawle,  Covenants,  §  193;  Collier  v.  Cowger,  52  Ark.  322;  Foote 
V.  Burnet,  10  Ohio,  317,  36  Am.  Dec.  90;  Guthrie  v.  Russell,  46  Iowa, 
269,  26  Am.  Rep.  135;  Eaton  v.  Lyman,  30  Wis.  41;  Dimmick  v. 
Lockwood,  10  Wend.  (N.  Y.)  142. 

310  Rawle,  Covenants,  §  204. 
(914) 


QYi,  19]  TRANSFER  INTER  VIVOS.  §  401 

mere  personal  right  of  action,  to  be  enforced  by  the  person 
entitled  to  the  benefit  of  the  covenant  at  the  time  of  the 
breach,  or,  in  case  of  his  death,  his  personal  representative, 
and  which  consequently  does  not  pass  with  the  land  to  his 
heir,  or  to  his  grantee,  unless  there  is  an  express  assignment 
of  the  right  of  action.'^  ^ 

Covenants  for  quiet  enjoyment  and  of  warranty  are  not,  it 
is  agreed,  broken  until  there  is  an  eviction  thereunder,  and 
consequently  they  may  be  enforced  by  any  subsequent  owner 
of  the  land  claiming  under  the  covenantee,  whether  a  grantee, 
heir,  or  devisee,^^^  though  the  right  of  action  for  a  covenant 
already  broken  does  not  so  pass  with  the  land.  So,  a  cove- 
nant for  further  assurance  is  not  regarded  as  broken  until 
damage  has  been  caused  by  refusal  to  furnish  the  assurance, 
and  there  is  consequently  a  right  of  action  thereon  in  favor 
of  a  subsequent  owner  of  the  land.^^^ 

The  covenants  of  seisin  and  of  right  to  convey,^^"*  and  also 
the  covenant  against  incumbrances,^^  °  have,  however,  in  the 

311  Lewes  v.  Ridge,  Cro.  Eliz.  863,  3  Gray's  Cas.  590;  Lucy  v. 
Levington,  2  Lev.  26,  3  Gray's  Cas.  591;  Davis  v.  Lyman,  6  Conn. 
249;  Ladd  v.  Noyes,  137  Mass.  151;  Adams  v.  Conover,  87  N.  Y.  422; 
Davidson  v.  Cox,  10  Neb.  150;  Provident  Life  &  Trust  Co.  v.  Fiss, 
147  Pa.  St.  232;  Clement  v.  Banlv  of  Rutland,  61  Vt.  298;  Peters  v. 
Bowman,  98  U.  S.  56;  Rawle,  Covenants,  §§  316,  317. 

312  Rawle,  Covenants,  §  213  et  seq. ;  Claycomb  v.  Munger,  51  111. 
373;  Redwine  v.  Brown,  10  Ga.  311;  Wyman  v.  Ballard,  12  Mass. 
304;  Suydam  v.  Jones,  10  Wend.  (N.  Y.)  180,  25  Am.  Dec.  552;  King 
V.  Kerr's  Adm'rs,  5  Ohio,  154,  22  Am.  Dec.  777;  Lawrence  v.  Senter, 
4   Sneed    (Tenn.)    52;    Tillotson   v.   Prichard,   60   Vt.   94,    6   Am.    St. 

Rep.  95. 

313  Rawle,  Covenants,  §  230;  Colby  v.  Osgood,  29  Barb.  (N.  Y.) 
339,  Finch's  Cas.  1103;  Collier  v.  Gamble,  10  Mo.  467. 

311  Greenby  v.  Wilcocks,  2  Johns.  (N.  Y.)  1,  3  Am.  Dec.  379, 
3  Gray's  Cas.  598;  Mitchell  v.  Warner,  5  Conn.  498,  Finch's  Cas. 
1094;  Mygatt  v.  Coe,  124  N.  Y.  212;  Lawrence  v.  Montgomery,  37  Cal. 
188;  Chapman  v.  Holmes'  Ex'rs,  10  N.  J.  Law,  20;  Ballard  v.  Child, 
34  Me.  355;  Clement  v.  Bank  of  Rutland,  61  Vt.  298. 

315  Mitchell  V.  Warner,  5  Conn.  498,  Finch's  Cas.  1094;  Clark  v. 
Swift,  3  Mete.   (Mass.)   390,  3  Gray's  Cas.  611;   Carter  v.  Denman's 

(915) 


§  401  REAL    PROPERTY.  [Ch.  19 

majority  of  the  states  in  this  country,  been  regarded  as 
broken  as  soon  as  made, — that  is,  it  is  considered  that,  since 
these  involve  stipulations  that  a  certain  state  of  things  exists 
at  the  time  of  the  conveyance,  the  nonexistence  thereof  causes 
an  immediate  breach.  In  some  states,  however,^ ^®  as  in 
England,^ ^'''  the  courts'  have  not  adopted  this  view,  but  allow 
an  action  to  be  brought  on  either  of  these  covenants  by  any 
owner  of  the  land  who  suffers  special  damage  by  the  breach ; 
and  in  other  states  there  are  statutory  provisions  to  this  ef- 
fect.^^*  But  even  in  states  in  which  it  is  held  that  there  is 
no  right  of  action  on  the  covenants  in  favor  of  an  assignee, 
it  seems  that  he  may  sue  thereon  in  the  name  of  his  grantor, 
under  the  equitable  rule,  largely  adopted  by  courts  of  law, 
that  the  assignee  of  a  chose  in  action  may  sue  in  the  name  of 
the  assignor,^^^  and  the  same  result  has  been  occasionally 
held  to  follow  from  modern  statutes  extending  the  right  of 
assignment,  and  allowing  an  action  in  the  name  of  the  real 
party  in  interest.^ ^"^ 

Ex'rs,  23  N.  J.  Law,  260;  Logan  v.  Moulder,  1  Ark.  313,  33  Am.  Dec. 
338;  Lawrence  v.  Montgomery,  37  Cal.  183;  Moore  v.  Merrill,  17  N. 
H.  75,  43  Am.  Dec.  593;  Guerin  v.  Smith,  62  Mich.  369;  Blondeau  v. 
Sheridan,  81  Mo.  545;  Marbury  v.  Thornton,  82  Va.  702.  See  Stew- 
art V.  Drake,  9  N.  J.  Law,  139,  Pinch's  Gas.  1100. 

310  Martin  v.  Baker,  5  Blackf.  (Ind.)  232;  Dehority  v.  Wright,  101 
Ind.  382;  Richard  v.  Bent,  59  111.  38,  14  Am.  Rep.  1;  Schofield  v. 
Iowa  Homestead  Co.,  32  Iowa,  318,  7  Am.  Rep.  197;  Mecklem  v. 
Blake,  22  Wis.  495;  Cole  v.  Kimball,  52  Vt.  639,  3  Gray's  Cas.  615. 
(covenant  against  incumbrances).  See  Allen  v.  Kennedy,  91  Mo. 
324. 

3i7Kingdon  v.  Nottle,  1  Maule  &  S.  355,  3  Gray's  Cas.  592;  King 
V.  Jones,  5  Taunt,  418,  3  Gray's  Cas.  595;  Kingdon  v.  Nottle,  4  Maule 
&  S.  53,  3  Gray's  Cas.  596. 

31S  See  Rawle,  Covenants,  §  211;  1  Stimson's  Am.  St.  Law,  §  1461. 

aioRawle,  Covenants,  §  226.  See  Peters  v.  Bowman,  98  U.  S.  59; 
Cole  V.  Kimball,  52  Vt.  643,  3  Gray's  Cas.  615.  As  to  a  suit  on  a 
covenant  against  incumbrances  in  the  name  of  the  assignor,  and  the 
difficulties  of  pleading  therein,  see  Rawle,  Covenants,  §  227. 

320  Security  Bank  of  Minnesota  v.  Holmes,  65  Minn.  531;  Kimball 
V.  Bryant,  25  Minn.  496;  Boyd  v.  Belmont,  58  How.  Pr.  (N.  Y.)  514. 

(916) 


Ch.    19]  TRANSFER  INTER  VIVOS.  §  401 

The  right  of  a  remote  grantee  to  sue  upon  a  covenant  of 
title  as  running  with  the  land  is  not  affected  bj  the  fact  that 
he  also  has  a  right  of  action  on  a  covenant  made  directly 
with  himself  bj  his  immediate  grantor.^ -^ 

In  order  to  avoid  the  possibility  of  two  or  more  judgments 
against  the  covenantor  on  account  of  the  same  breach  in  favor 
of  successive  owners  of  the  land,  the  rule  has  been  laid  down 
and  generally  adopted  that  neither  the  covenantee  nor  a  sub- 
sequent 0"\\Tier,  after  parting  with  the  land,  can  recover  on 
the  covenant  until  he  has  himself  been  compelled  to  pay  dam- 
ages on  his  own  covenant,  in  favor  of  one  claiming  under 
him,  this  being  regarded  as  tantamount  to  an  eviction.^ -- 

The  covenantee  or  other  owner  of  the  land  cannot,  unless 
in  special  cases,  after  having  conveyed  the  land,  release  the 
covenant,  so  as  to  affect  the  right  of  his  grantee  to  sue  there- 
on,^23  ^jjj  j|.  jjjjg  i^ggjj  suggested  that  such  a  release  by  the 
covenantee,  even  though  made  by  him  while  owner  of  the 
land,  does  not  affect  the  right  of  action  in  favor  of  a  subse- 
quent transferee  of  the  land  who  takes  without  notice  of  the 
release.^"^ 

321  Withy  V.  Mumford,  5  Cow.  (N.  Y.)  137,  3  Gray's  Cas.  607;  Mark- 
land  V.  Crump,  18  N.  C.  101,  27  Am.  Dec.  230;  Rawle,  Covenants,  § 
216. 

322  Booth  V.  Starr,  1  Conn.  244,  6  Am.  Dec.  233,  3  Gray's  Cas.  601; 
Withy  V.  Mumford,  5  Cow.  (N.  Y.)  137,  3  Gray's  Cas.  607;  Chase  v. 
Weston,  12  N.  H.  413;  Markland  v.  Crump,  18  N.  C.  94,  27  Am.  Dec. 
230;  Clement  v.  Bank  of  Rutland,  61  Vt.  298;  Wheeler  v.  Sohier,  3 
Cush.  (Mass.)  222;  Redwine  v.  Brown,  10  Ga.  311;  Rawle,  Covenants, 
§  216. 

323Abby  V.  Goodrich,  3  Day  (Conn.)  433;  Claycomb  v.  Munger,  51 
111.  373;  Crooker  v.  Jewell,  29  Me.  527;  Chase  v.  Weston,  12  N.  H. 
413. 

324  See  Claycomb  v.  Munger,  51  111.  373;  Susquehanna  &  Wyoming 
Valley  Railroad  &  Coal  Co«  v.  Quick,  61  Pa.  St.  339;  Field  v.  Snell, 
4  Cush.  (Mass.)  504.     Contra,  see  Littlefield  v.  Getchell,  32  Me.  392. 

(917) 


g  402  REAL  PROPERTY.  [Ch.    19 

V.    Execution  of  the  Conveyance. 

A  conveyance  must  be  signed,  and,  in  many  jurisdictions^ 
must  be  sealed.    In  some  jurisdictions  it  must  be  witnessed. 

An  acknowledgment  of  the  conveyance  by  the  grantor  be- 
fore some  official  is  usually  required  only  in  order  to  entitle  it 
to  record,  though  in  some  states  a  conveyance,  or  a  particular 
class  of  conveyance,  must  be  acknowledged  to  be  valid. 

There  must  be  a  delivery  of  the  conveyance  in  order  that 
it  may  be  effective,  this  being  the  expression,  by  word  or  act, 
of  the  grantor's  intention  that  the  conveyance  shall  take  effect 
as  a  transfer  of  title.  This  expression  of  intention  may  be 
valid,  though  the  grantee  is  not  present. 

A  delivery  in  escrow  is  a  manual  transfer  of  the  instrument 
to  one  other  than  the  grantee,  subject  to  a  stipulation  that  the 
conveyance  shall  not  take  effect  until  a  certain  condition  is 
fulfilled. 

In  a  number  of  the  states  no  title  is  regarded  as  passing  by 
the  conveyance  until  the  grantee  assents  thereto.  In  other 
states,  as  in  England,  there  is  no  such  rule. 

The  execution  of  a  conveyance,  including  delivery  thereof, 
may  be  by  an  agent  acting  under  a  "power  of  attorney." 

§  402.     Signing. 

At  common  law,  a  written  transfer  of  land  was  always 
sealed,  but  not  signed.  In  England,  the  better  opinion  is 
that  the  requirement  in  the  Statute  of  Frauds  that  the  writ- 
ing be  signed  does  not  apply  to  a  sealed  instrument.^^^  In 
this  country,  however,  the  state  statute  requiring  a  signed 

325  Cherry  v.  Heming,  4  Exch.  631;  Cooch  v.  Goodman,  2  Q.  B.  580, 
597;  Aveline  v.  Whisson,  4  Man.  &  G.  801;  3  Preston,  Abstracts,  61; 
Challis,  Real  Prop.  327.  The  statute  in  terms  (29  Car.  II.  c.  3,  §  1) 
provides  that  all  leases,  estates,  interests  of  freehold,  terms  of  years, 
etc.,  "made  or  created  by  livery  and  seisin  only,  or  by  parol,  and 
not  put  in  writing,  and  signed  by  the  parties  so  making  or  creating, 
the  same,  or  their  agents  thereunto  lawfully  authorized  by  writing, 
shall  have  the  force  and  effect  of  leases  or  estates  at  will  only." 

(918) 


Ch.   19]  TRANSFER  INTER  VIVOS.  §  40Z 

writing  for  the  transfer  of  an  interest  in  land  is  usually,  if 
not  invariabl}^,  construed  as  requiring  the  writing  to  be 
signed,  although  it  also  be  sealed.^-^  In  the  absence  of  a 
statutory  requirement  that  the  instrument  be  ^'subscribed"  by 
the  grantor,  the  signature  may,  it  has  been  held,  be  in  any 
part  thereof .^^''^  ■ 

The  signing  may  be  by  mark,  although  the  person  so  sign- 
ing is  able  to  write,^"*  or  may  be  by  the  hand  of  another  per- 
son in  the  grantor's  presence.^^^  Even  a  signature  by  an- 
other, made  out  of  the  grantor's  presence,^^^  is  sufficient  if 
adopted  by  the  grantor,  as  when  he  subsequently  acknowl- 
edges or  delivers  the  instrument  as  his  act  and  deed. 

When  the  conveyance  purports  to  be  by  more  than  one 
grantor,  but  all  the  grantors  do  not  sign,  the  signatures  of 
those  that  do,  followed  by  delivery  by  them,  will  be  sufficient 

326  Adams  v.  Medsker,  25  W.  Va.  127;  Goodman  v.  Randall,  44 
Conn.  321;  Shillock  v.  Gilbert,  23  Minn.  386;  Isham  v.  Bennington 
Iron  Co.,  19  Vt.  230;  Mutual  Benefit  Life  Ins.  Co.  v.  Brown,  30  N.  J. 
Eq.  193. 

327  Saunders  v.  Hackney,  10  Lea  (Tenn.)  194;  Newton  v.  Emerson^ 
66  Tex.  142;  Smith  v.  Howell,  11  N.  J.  Eq.  349;  McConnell  v.  Brill- 
hart,  17  111.  354,  65  Am.  Dec.  661;  Devereux  v.  McMahon,  108  N.  C. 
134. 

328  Meazels  v.  Martin,  93  Ky.  50;  Devereux  v.  McMahon,  108  N.  C 
134;  Truman  v.  Lore's  Lessee,  14  Ohio  St.  144;  Mackay  v.  Easton,  19" 
Wall.   (U.  S.)   619. 

329  Lewis  V.  Watson,  98  Ala.  479;  Jansen  v.  McCahill,  22  Cal.  563,. 
83  Am.  Dec.  84;  Mutual  Benefit  Life  Ins.  Co.  v.  Brown,  30  N.  J.  Eq. 
193,  note;  Bird  v.  Decker,  64  Me.  550;  Gardner  v.  Gardner,  5  Cush. 
(Mass.)  483,  52  Am.  Dec.  740;  McMurtry  v.  Brown,  6  Neb.  368;  Hays 
V.  Hays,  6  Pa.  St.  368. 

330  Nye  V.  Lowry,  82  Ind.  316;  Clough  v.  Clough,  73  Me.  487,  40  Am. 
Rep.  386;  Bartlett  v.  Drake,  100  Mass.  174,  97  Am.  Dec.  92;  Conlan  v. 
Grace,  36  Minn.  276;  Pierce  v.  Hakes,  23  Pa.  St.  231;  Reinhart  v. 
Miller,  22  Ga.  402,  68  Am.  Dec.  506;  Kerr  v.  Russell,  69  111.  666,  18 
Am.  Rep.  634;  Newton  v.  Emerson,  66  Tex.  142. 

(919) 


c  403  REAL  PROPERTY.  [Ch.  19 

to  divest  their  interest,^^^   unless  their  delivery  was  condi- 
tional upon  signature  by  the  others. 


332 


^  403.     Sealing — Necessity. 

At  common  law,  the  only  recognized  mode  of  authenticat- 
ing a  written  instrument  was  by  sealing,  and  consequently 
any  conveyance  in  use  at  the  present  day  which  takes  effect 
by  the  common  law,  such  as  a  grant  of  a  right  in  another's 
land,  or  a  release,  must  be  under  seal,  in  the  absence  of  a 
statutory  provision  to  the  contrary.^^^ 

In  a  number  of  the  states,  by  express  provision  of  statute, 
seals  are  no  longer  necessary,  and  the  presence  of  a  seal  on 
a  conveyance  does  not  affect  the  acquisition  of  rights  thereun- 
(jgj._334  jjj^  other  states  there  is  an  express  requirement  that 
a  transfer  of  an  interest  in  land  shall  be  under  seal.^^^ 

Since,  after  the  passage  of  the  Statute  of  Uses,  a  convey- 
ance by  bargain  and  sale  might  be  oral,  the  mere  payment  of 
a  consideration  being  sufficient  to  raise  a  use,  which  the  stat- 
ute would  execute,^^^  and  since,  moreover,  the  Statute  of  En- 
rollments, passed  in  recognition  of  this  fact,  and  requiring  a 

33iColton  V.  Leavey,  22  Cal.  496;  Jackson  v.  Sanford,  19  Ga.  14; 
Scott  V.  Whipple,  5  Me.  336;  Harrelson  v.  Sarvis,  39  S.  C.  14. 

332  Johnson  v.  Brook,  31  Miss.  17;  Arthur  v.  Anderson,  9  Rich.  (S. 
C.)  234;  Haskins  v.  Lombard,  16  Me.  140,  33  Am.  Dec.  645.  See  post, 
§  406.  ^ 

333  Somerset  v.  Fogwell,  5  Barn.  &  C.  875,  3  Gray's  Gas.  230;  Wood 
V.  Leadbitter,  13  Mees.  &  W.  838,  2  Gray's  Gas.  359;  Hewlins  v.  Ship- 
pam,  5  Barn.  &  C.  229;  Arnold  v.  Stevens,  24  Pick.  (Mass.)  109,  35 
Am.  Dec.  305;  Fuhr  v.  Dean,  26  Mo.  116,  69  Am.  Dec.  484;  Huff  v. 
McCauley.  53  Pa.  St.  206,  91  Am.  Dec.  203;  Gagle  v.  Parker,  97  N.  C. 
271. 

334  1  Stimson's  Am.  St.  Law,  §  1564  (B).  See  Wisdom  v.  Reeves, 
110  Ala.  418;  Pierson  v.  Armstrong,  1  Iowa,  283,  63  Am.  Dec.  440; 
Jerome  v.  Ortman,  66  Mich.  668;  Gibbs  v.  McGuire,  70  Miss.  646. 

335 1  Stimson's  Am.  St.  Law,  §  1564  (A). 

336Challis,  Real  Prop.  338;    Williams,  Real  Prop.   (18th  Ed.)    196; 
1  Hayes,  Conveyancing  (5th  Ed.)  76. 
(1)20) 


,q1j    i9-|  transfer  inter  VIVOS.  ^  403 

bargain  and  sale  to  be  by  writing  under  seal  and  enrolled, 
has  been  generally  regarded  as  not  in  force  in  this  country, 
it  would  seem  that  a  seal  is  unnecessary,  in  the  absence  of  a 
state  statute  to  the  contrary,  in  the  case  of  a  conveyance  tak- 
ing effect  under  the  Statute  of  Uses  or  under  a  state  statute. 
In  a  number  of  the  states,  however,  it  has  been  decided  or 
assumed  that,  even  in  the  absence  of  a  local  statutory  re- 
quirement, a  seal  is  necessary,  this  view  being  sometimes 
based  upon  the  assumption  that  a  conveyance  of  land  is  nec- 
essarily a  "deed,"  which,  since  a  deed  means  a  sealed  instru- 
ment, assumes  the  very  point  in  question.^^"^ 

Even  when  a  seal  is  necessary  to  convey  the  legal  title,  an 
unsealed  conveyance  will  be  effective  in  equity,  as  vesting  an 
•equitable  interest  in  the  grantee  named.^^^ 

SuiRciency. 


At  common  law,  an  instrument  was  sealed,  usually  at  least, 
by  impressing  some  device  upon  wax,  which  was  made  to  ad- 
here to  the  paper  ;^^^  but  at  the  present  day  an  impression 
made  by  stamping  upon  the  paper  on  which  the  instrument  is 
written,^^*^  or  even  a  paper  wafer  or  piece  of  paper  gummed 

337  Floyd  V.  Ricks,  14  Ark.  286,  58  Am.  Dec.  374;  McLaughlin  v. 
Randall,  66  Me.  226;  Jackson  v.  Hart,  12  Johns.  (N.  Y.)  77;  Robin- 
son V.  Noel,  49  Miss.  253;  Switzer  v.  Knapps,  10  Iowa,  72,  74  Am. 
Dec.  375;  Colvin  v.  Warford,  20  Md.  357.  In  Underwood  v.  Camp- 
bell, 14  N.  H.  393,  it  seems  to  be  considered  that  the  Statute  of  Enroll- 
ments is  in  force  in  New  Hampshire. 

33sWadsworth  v.  Wendell,  5  Johns.  Ch.  (N.  Y.)  224;  Brinkley  v. 
Bethel,  9  Heisk.  (Tenn.)  786;  Jewell  v.  Harding,  72  Me.  124;  Frost  v. 
Wolf,  77  Tex.  455,  19  Am.  St.  Rep.  761;  McCarley  v.  Tippah  County 
Sup'rs,  58  Miss.  483;  Switzer  v.  Knapps,  10  Iowa,  72,  74  Am.  Dec.  375. 

339  3  Co.  Inst.  169. 

340  Sugden,  Powers  (8th  Ed.)  232;  Pillow  v.  Roberts,  12  Ark.  822; 
Allen  V.  Sullivan  R.  Co.,  32  N.  H.  446;  Corrigan  v.  Trenton  Delaware 
Falls  Co.,  5  N.  J.  Eq.  52,  3  Gray's  Cas.  630;  Hendee  v.  Pinkerton,  14 
Allen  (Mass.)  381;  Pillow  v.  Roberts,  13  How.  (U.  S.)  472.  Contra, 
Bank  of  Rochester  v.  Gray,  2  Hill  (N.  Y.)  227;  Warren  v.  Lynch,  5 
Johns.   (N.  Y.)   239.     See  1  Am.  Law  Rev.  638. 

(921) 


g  403  REAL   PROPERTY.  [Ch.   19 

on  the  face  of  the  instrument,^ ^^  is  usually  regarded  as  suffi- 
cient. By  statute  in  many  states,  a  mere  scroll  or  any  other 
device  marked  on  the  paper  on  which  the  conveyance  is  writ- 
ten is  sufficient,^ ^^  and  in  other  states  a  similar  view  is  taken, 
in  the  absence  of  any  express  statute.^^^  So,  the  writing  of 
the  word  "Seal"  in  connection  with  the  signature  has  been  re- 
garded as  a  sufficient  sealing.^^* 

A  recital  in  the  instrument  that  it  is  sealed  is  not  neces- 
sary in  order  to  make  the  sealing  effective,  if  there  is  actually 
a  seal.^^^  In  a  few  decisions,  however,  a  different  view  has 
been  taken  when  the  alleged  seal  consisted  of  merely  a  scroll 
or  other  device  which  did  not  of  itself  show  that  it  was  af- 
fixed as  a  seal.^^^     A  statement  in  the  instrument  that  it  is- 

341  Tasker  v.  Bartlett,  5  Cush.  (Mass.)  359;  Turner  v.  Field,  44 
Mo.  382;  Corrigan  v.  Trenton  Delaware  Falls  Co.,  5  N.  J.  Eq.  52,  3 
Gray's  Cas.  630. 

342 1  Stimson's  Am.  St.  Law,  §  1565. 

343  Jones  V.  Logwood,  1  Wash.  (Va.)  42;  Hacker's  Appeal,  121  Pa. 
St.  192;  Trasher  v.  Everhart,  3  Gill  &  J.  (Md.)  246;  Hudsen  v.  Poin- 
dexter,  42  Miss.  304;  Fames  v.  Preston,  20  111.  389;  Relph  v.  Gist,  4 
McCord  (S.  C.)  267.  Contra,  Warren  v.  Lynch,  5  Johns.  (N.  Y.)  239; 
McLaughlin  v.  Randall,  66  Me.  226;  Douglas  v.  Oldham,  6  N.  H.  150; 
Bates  V.  Boston  &  N.  Y.  C.  R.  Co.,  10  Allen  (Mass.)  251,  3  Gray's 
Cas.  628. 

344  Cochran  v.  Stewart,  57  Minn.  499;  Whiteley  v.  Davis'  Lessee,  1 
Swan  (Tenn.)  333. 

The  word  "Seal"  within  a  scroll  has  been  decided  to  be  sufficient, 
in  some  cases.  Hastings  v.  Vaughn,  5  Cal.  315;  Miller  v.  Binder, 
28  Pa.  St.  489;  English  v.  Helms,  4  Tex.  228.  Contra,  Beardsley  v.. 
Knight,  4  Vt.  471. 

345  Wing  V.  Chase,  35  Me.  260;  Devereux  v.  McMahon,  108  N.  C. 
134;  Proprietors  of  Mill  Dam  Foundery  Co.  v.  Hovey,  21  Pick. 
(Mass.)  417,  428;  Taylor  v.  Glaser,  2  Serg.  &  R.  (Pa.)  502;  Comyns, 
Dig.  "Fait"  (A  2). 

346  Bohannon  v.  Hough,  1  Miss.  461;  Cromwell  v.  Tate's  Bx'r,  7 
Leigh  (Va.)  301,  30  Am.  Dec.  506;  Corlies  v.  Vannote,  16  N.  J.  Law, 
324;  Carter  v.  Penn,  4  Ala.  140.  And  see  Buckingham  v.  Orr,  6 
Colo.  587.    Compare  Ash  well  v.  Ayres,  4  Grat.  (Va.)  283. 

(922) 


Ch.   19]  TRANSFER  INTER  VIVOS.  §  404 

sealed  will  not  be  siiJficient  as  a  substitute  for  a  seal.**'' 
The  seal  need  not,  and  in  fact  usually  is  not,  afiixed  at  the 
same  time  as  or  after  the  signing  of  the  instrument,  it  being 
sufficient  that  the  party  adopts,  expressly  or  impliedly,  the 
seal  already  placed  on  the  paper.^^^  So,  each  of  the  parties 
executing  the  instrument  need  not  rhave  a  separate  seal,  one 
seal  being  sufficient  if  adopted  by  all  the  parties  signing.^^* 

§  404.     Witnesses. 

In  some  states  witnesses,  usually  two  in  number,  are  nec- 
essary in  order  to  make  a  conveyance  valid  as  between  the 
parties  thereto.  In  other  states,  no  witnesses  are  required, 
while  in  some,  though  witnesses  are  not  necessary  to  render 
the  conveyance  valid  as  between  the  parties,  they  are  neces- 
sary for  the  purpose  of  proving  the  deed  for  record,  in  the 
absence  of  an  acknowledgment  by  the  grantor.^^"  The  wit- 
ness need  not  be  present  at  the  actual  signing  of  the  instru- 
ment by  the  grantor,  provided  the  latter  acknowledges  to 
him  that  it  is  his  act,  and  expressly  or  impliedly  requests  him 
to  attest  the  instrument.^ ^^     The  witnesses  must  sign  the  in- 

347  Deming  v.  Bullitt,  1  Blackf.  (Ind.)  241;  McPherson  v.  Reese, 
58  Miss.  749;   Mitchell  v.  Parham,  Harp.   (S.  C.)   3;   Davis  v.  Judd, 

6  Wis.  85;  Taylor  v.  Glaser,  2  Serg.  &  R.  (Pa.)  502. 

348  Sheppard's  Touchstone,  54,  57;  Reg.  v.  Inhabitants  of  St.  Paul, 

7  Q.  B.  232;  Ball  v.  Dunsterville,  4  Term  R.  313;  Ashwell  v.  Ayres, 
4  Grat.  (Va.)  283. 

349  Carter  v.  Chaudron,  21  Ala.  88;  Davis  v.  Burton,  4  111.  41,  36 
Am.  Dec.  511;  Northumberland  v.  Cobleigh,  59  N.  H.  250;  Pickens  v. 
Rymer,  90  N.  C.  283,  47  Am.  Rep.  521;  Lunsford  v.  La  Motte  Lead 
Co.,  54  Mo.  426;  Yale  v.  Flanders,  4  Wis.  96;  Bowman  v.  Robb,  6  Pa. 
St.  302;  Bradford  v.  Randall,  5  Pick.  (Mass.)  496;  Lambden  v. 
Sharp,  9  Humph.  (Tenn.)  224. 

350  1  Stimson's  Am.  St.  Law,  §  1566. 

351  Jackson  v.  Phillips,  9  Cow.  (N.  Y.)  94,  113;  Tate  v.  Lawrence, 
11  Heisk.  (Tenn.)  503;  Clements  v.  Pearce,  63  Ala.  284;  Mulloy  v. 
Ingalls,  4  Neb.  115.  See  Little  v.  White,  29  S.  C.  170;  Poole  v.  Jack- 
son, 66  Tex.  380;  1  Stimson's  Am.  St.  Law,  §  1567. 

(923) 


§   405  REAL  PROPERTY.  [Ch.  19 

strument,  their  signatures  being  usually  placed  under  a 
clause,  "Signed,  sealed,  and  delivered  in  the  presence  of."^'^ 
The  statutes  have  usually  been  construed  as  requiring  that 
the  witness  be  competent,  at  the  time  of  his  attestation  of  the 
conveyance,  to  testify  in  regard  to  its  execution  in  case  of 
litigation  between  the  parties,  with  the  result  that  his  at- 
testation is  of  no  effect  for  the  purpose  of  validating  the  con- 
veyance if  he  is  not  so  competent.^^^ 

§  405.     Acknowledgment. 

In  some  states  the  statute  requires  a  conveyance  to  be  ac- 
knowledged by  the  grantor  before  an  official  in  order  to  make 
it  effective  even  as  between  the  parties.  More  usually,  how- 
ever, the  requirement  of  acknowledgment  is  imposed  only  as 
a  preliminary  to  the  record  of  a  conveyance  for  the  purpose 
of  charging  a  subsequent  purchaser  with  notice  thereof.  The 
acknowledg-ment  has,  moreover,  in  a  number  of  states,  the 
«fPect  of  rendering  the  conveyance  admissible  in  evidence 
without  further  proof  of  its  execution.^^* 

The  statutes  require  the  acknowledgment  to  be  made  be- 
fore an  official  named,  usually  a  judge,  clerk  of  court,  justice 
of  the  peace,  or  notary  public,  and  he  must  write  upon  the 

352  The  signature  of  the  witness,  it  has  been  decided,  may  be  by 
mark.  Brown  v.  McCormick,  28  Mich.  215;  Devereux  v.  McMahon, 
102  N.  C.  284. 

353  So  it  has  been  held  that  one  having  a  pecuniary  interest  in  the 
conveyance  is  disqualified.  Winsted  Sav.  Bank  &  Building  Ass'n  v. 
Spencer,  26  Conn.  195;  Child  v.  Baker,  24  Neb.  188.  And  a  grantor 
cannot  witness  the  execution  of  the  instrument  by  his  co-grantor. 

A  wife  or  husband  of  a  grantor  has  also  been  regarded  as  dis- 
qualified. Third  Nat.  Bank  of  Chattanooga  v.  O'Brien,  94  Tenn.  38; 
Johnston  v.  Slater,  11  Grat.  (Va.)  321;  Corbett  v.  Norcross,  35  N.  H. 
99.  But  in  some  states  it  has  been  held  that  the  witness  need  not 
be  competent  to  testify  at  the  time  of  its  execution,  provided  he  can 
testify  when  called  to  prove  the  execution  in  court.  Frink  v.  Pond, 
46  N.  H.  125;  Doe  d.  Johnson  v.  Turner,  7  Ohio,  216,  pt.  2. 

354  1  Stimson's  Am.  St.  Law,  §§  1570-1572. 

(924) 


Ch.  19]  TRANSFER  INTER  VIVOS.  §  405 

instrument  liis  certificate  that  the  acknowledgment  was  made, 
and  usually  it  is  required  that  the  certificate  state  that  the 
identity  of  the  party  making  the  acknowledgment  was 
known  to  him.  This  certificate  must  be  signed  by  the  offi- 
cial, and,  when  he  has  an  official  seal,  must  be  sealed  by 
him.^^^ 

By  married  woman. 


In  many  states,  a  conveyance  in  which  a  married  woman 
joins,  whether  for  the  purpose  of  conveying  her  own  prop- 
erty, or  in  order  to  release  her  rights  in  her  husband's  prop- 
erty, must,  in  order  to  be  effective  as  against  her,  be  acknowl- 
edged by  her  before  the  officer  after  a  private  examination 
by  him  to  ascertain  that  she  executes  it  voluntarily  and  with- 
out compulsion  from  her  husband,  and  the  certificate  of  the 
officer  must  state  that  he  so  examined  her,  and  that  she  ac- 
knowledged the  instrument  to  be  her  free  and  voluntary  act. 
In  some  of  the  other  states,  while  a  private  examination  is 
not  necessary,  the  certificate  must  contain  such  a  statement 
as  to  the  free  and  voluntary  nature  of  her  act.^^^  The  offi- 
cer is  also  usually  required  by  the  statute  to  ascertain,  before 
taking  the  acknowledgment,  that  she  understands  the  nature 
of  the  instrument.^^" 

Conclusiveness  of  certificate. 


The  certificate  of  acknowledgment  is  to  be  •construed  with 
reference  to  the  instrument  to  which  it  is  appended,  and  con- 
sequently omissions  or  errors  therein,  not  pertaining  to  the 
fact  of  acknowledginent  itself,  may  usually  be  corrected  by 

355  1  Stimson's  Am.  St.  Law,  §§  1578-158:i. 

350  1  Stimson's  Am.  St.  Law,  §  6501. 

357  See  Norton  v.  Davis,  83  Tex.  32;  Drew  v.  Arnold,  85  Mo.  128; 
Tavenner  v.  Barrett,  21  W.  Va.  656;  Spencer  v.  Reese,  165  Pa.  St.  158; 
Mettler  v.  Miller,  129  111.  630. 

(925) 


,§  405  REAL  PROPERTY.  [Ch.  19 

reference  to  the  language  of  the  conveyance.^^^  Oral  evi- 
dence, however,  is  not  admissible  in  order  to  prove  that  an 
•essential  fact  was  by  mistake  omitted  from  the  certificate.'** 
In  some  states,  by  statute,  the  certificate  is  merely  prima  facie 
•evidence  of  the  facts  which  it  recites,  and  its  falsity  may 
be  shown  by  extraneous  evidence.^ ^^  But,  in  the  absence  of  a 
statutory  provision  to  the  contrary,  a  certificate  of  acknowl- 
edgment is  usually  regarded  as  conclusive  in  regard  to  the 
matters  as  to  which  the  ofiicer  is  required  to  certify,^ ^^  though 
the  fact  that  there  was  no  acknowledgment  whatever  may  be 
shown  in  contradiction  of  the  certificate.'®^  As  between  the 
parties,  moreover,  evidence  is  always  admissible  to  show  that 
the  acknowledgment  was  obtained  by  fraud  or  imposition, 

368  Carpenter  v.  Dexter,  8  Wall.  (U.  S.)  513;  Owen  v.  Baker,  101 
Mo.  407,  20  Am.  St.  Rep.  618;  Summer  v.  Mitchell,  29  Fla.  179;  Kelly 
V.  Rosenstock,  45  Md.  389;  Milner  v.  Nelson,  86  Iowa,  452;  Bruns- 
wick-Balke-Collender  Co.  v.  Brackett,  37  Minn.  58;  Fuhrman  v.  Lou- 
don, 13  Serg.  &  R.  (Pa.)  386,  15  Am.  Dec.  608. 

359  Elliott  V.  Piersol's  Lessee,  1  Pet.  (U.  S.)  328;  Ennor  v.  Thomp- 
son, 46  111.  214;  Cox  v.  Holcomb,  87  Ala.  589,  13  Am.  St.  Rep.  79; 
Willis  V.  Gattman,  53  Miss.  721;  Wynne  v.  Small,  102  N.  C.  133; 
Harty  v.  Ladd,  3  Or.  353. 

360  Tuten  v.  Gazan,  18  Fla.  751;  Romer  v.  Conter,  53  Minn.  171; 
Moore  v.  Hopkins,  83  Cal.  270,  17  Am.  St.  Rep.  248;  Pierce  v.  Georger, 
103  Mo.  540. 

361  Pickens  v.  Knisely,  29  W.  Va.  1;  Petty  v.  Grisard,  45  Ark.  117; 
Graham  v.  Anderson,  42  111.  515,  92  Am.  Dec.  89 ;  Pereau  v.  Frederick, 
17  Neb.  117;  Heilman  v.  Kroh,  155  Pa.  St.  1;  Mutual  Life  Ins.  Co.  of 
New  York  v.  Corey,  135  N.  Y.  326;  Grider  v.  American  Freehold  Land 
Mortg.  Co.,  99  Ala.  281,  42  Am.  St.  Rep.  58;  Banning  v.  Banning,  80 
Cal.  271,  13  Am.  St.  Rep.  156;  Johnston  v.  Wallace,  53  Miss.  333,  24 
Am.  Rep.  699. 

362  Meyer  v.  Gossett,  38  Ark.  377;  Williamson  v.  Carskadden,  36 
Ohio  St.  664;  Smith  v.  Ward,  2  Root  (Conn.)  374,  1  Am.  Dec.  80; 
Morris  v.  Sargent,  18  Iowa,  90;  Grider  v.  American  Freehold  Land 
Mortg.  Co.,  99  Ala.  281,  42  Am.  St.  Rep.  58;  O'Neil  v.  Webster,  150 
Mass.  572;  Michener  v.  Cavender,  38  Pa.  St.  334,  80  Am.  Dec.  486; 
Wheelock  v.  Cavitt,  91  Tex.  679,  66  Am.  St.  Rep.  920, 

(926) 


Ch.  19]  TRANSFER  INTER  VIVOS.  §  406 


363 


in  which  the  grantee  participated,  or  of  which  he  knew, 
but  this  cannot  be  shown  as  against  a  person  ignorant  of  the 
fraud.3«4 

Proof  in  place  of  acknowledgement. 


In  many  states  the  statute  provides  for  the  proof  of  the 
deed  by  third  persons  before  an  official  in  case  the  acknowl- 
edgment is  omitted,  as  when  the  grantor  refuses  to  make  it,  or 
•dies  before  making  it;  and  likewise,  in  some  states  at  least, 
when  the  acknowledgment  or  certificate  is  defective.  In 
those  states  in  which  attesting  witnesses  are  required,  they 
are  the  proper  persons  to  prove  the  instrument.'^'^ 

§  406.     Delivery. 

Delivery  is  the  grantor's  expression,  by  either  word  or  act, 
of  his  intention  that  the  conveyance  shall  take  effect  as  a 
transfer  of  title.  Until  delivery,  a  conveyance  is  inopera- 
tive to  transfer  title,  and  consequently,  even  though  the  in- 
strument is  properly  signed  and  sealed,  no  person  can  claim 
any  rights  thereunder. ^*^^     It  is  immaterial  that  the  person 

363  Grider  v.  American  Freehold  Land  Mortg.  Co.,  99  Ala.  281,  42 
Am.  St.  Rep.  58;  Central  Bank  of  Frederick  v.  Copeland,  18  Md.  305, 
81  Am.  Dec.  597;  Allen  v.  Lenoir,  53  Miss.  321;  Eyster  v.  Hatheway, 
50  111.  521,  99  Am.  Dec.  537;  Chivington  v.  Colorado  Springs  Co., 
9  Colo.  597;  Cover  v.  Manaway,  115  Fa.  St.  338,  2  Am.  St.  Rep.  552. 

3G4Ladew  v.  Paine,  82  III.  221;  De  Arnaz  v.  Escandon,  59  Cal.  486; 
Jolmston  V.  Wallace,  53  Miss.  331,  24  Am.  Rep.  699;  Moore  v.  Fuller, 
6  Or.  272,  25  Am.  Rep.  524;  Louden  v.  Blythe,  27  Pa.  St.  22,  67  Am. 
Dec.  442;  Pierce  v.  Fort,  60  Tex.  404. 

365  1  Stimson's  Am.  St.  Law,  §§  1590-1606. 

366  sheppard's  Touchstone,  57;  Co.  Litt.  36a;  2  Bl.  Comm.  307;  4 
Kent's  Comm.  454. 

That  acts  without  words  are  sufficient,  see  Merrills  v.  Swift,  18 
Conn.  257,  3  Gray's  Cas.  677;  Hill  v.  McNichol,  80  Me.  209;  Bogie  v. 
Bogie,  35  Wis.  659;  Dukes  v.  Spangler,  35  Ohio  St.  119;  Fain  v. 
Smith,  14  Or.  82,  58  Am.  Rep.  281;  Ruckman  v.  Ruckman,  32  N.  J. 
Eq.  259;   Sneathen  v.  Sneathen,  104  Mo.  201,  24  Am.  St.  Rep.  326. 

(927) 


i^  406  REAL  PROPERTY.  [Ch.    19 

claiming  thereunder  is  without  knowledge  of  its  nondelivery, 
and  has  reason  to  believe  that  it  has  been  delivered,  as  when 
the  conveyance  has  been  handed  him  by  one  who  fraudu- 
lently procured  it  from  the  grantor's  custody,^ ^^  or  when  the 
conveyance  has  been  recorded.^ ^^  The  question  whether  cer- 
tain acts  or  \Vords  constitute  a  delivery  is  one  of  intention, 
and  there  is  a  sufficient  delivery  if  an  intention  that  the  con- 
veyance shall  immediately  become  operative  clearly  ap- 
pears.^^^  This  question  of  intention  is  usually  one  of  fact, 
which,  in  the  absence  of  conclusive  evidence  upon  the  sub- 
ject, is  for  the  jury.^^*^ 

There  is  considerable  confusion  in  the  decisions  as  to 
what  may  constitute  a  delivery, — a  confusion  which  arises  in 
some  cases  from  a  mistaken  impression  that  the  "delivery" 
of  a  deed  refers  to  the  physical  disposition  of  the  instrument 
itself.  On  the  contrary,  the  delivery  docs  not  necessarily 
involve  any  manual  transfer  of  the  instrument  ;^"^  and  pro- 
vided there  is,  as  stated  above,  the  intention  that  the  deed 
shall  take  effect,  the  fact  that  the  gi'antor  retains  possession 
of  the  instrument  does  not  affect  the  validity  of  the  deliv- 
ery.^'^      So,  while  it  is  frequently  said,  both  by  the  older  and 

36' Van  Amringe   v.   Morton,   4   Whart.    (Pa.)    382. 

368  See  cases  cited  post,  note  380. 

369Xenos  V.  Wickham,  13  C.  B.  (N.  S.)  381,  per  Willes,  J.;  Hannah 
V.  Swarnet,  8  Watts  (Pa.)  11,  per  Gibson,  C.  J.;  Fisher  v.  Hall,  41 
N.  Y.  416,  3  Gray's  Gas.  728;  Mitchell's  Lessee  v.  Ryan,  3  Ohio  St.  377, 
3  Gray's  Cas.  691;  Burkholder  v.  Casad,  47  Ind.  418;  Steel  v.  Miller, 
40  Iowa,  402. 

370  Murray  v.  Stair,  2  Barn.  &  C.  82;  Jones  v.  Swayze,  42  N.  J.  Law, 
279,  3  Gray's  Cas.  732;  Brann  v.  Monroe,  11  Ky.  Law  Rep.  324;  Grain 
V.  Wright,  36  Hun,  74,  114  N.  Y.  307;  Fisher  v.  Kean,  1  Watts  (Pa.) 
278;  Dwinell  v.  Bliss,  58  Vt.  353;  Hurlburt  v.  Wheeler,  40  N.  H.  73.. 

371  Shelton's  Gase,  Gro.  Eliz.  7;  Walker  v.  Walker,  42  111.  311,  89 
Am.  Dec.  445;  Newton  v.  Bealer,  41  Iowa,  334;  Byers  v.  McGlanahan, 
6  Gill  &  J.  (Md.)  250;  Conlan  v.  Grace,  36  Minn.  276;  Farrar  v. 
Bridges,  5  Humph.   (Tenn.)  411. 

372  Doe  d.  Garnons  v.  Knight,  5  Barn.  &  G.  671,  3  Gray's  Gas.  646; 

(928) 


Qll,    19]  TRANSFER  INTER  VIVOS.  g   40(> 

the  later  authorities,  that  the  delivery  may  be  made  to  a 
third  person  for  the  benefit  of  the  grantee,^  ^^  in  such  case,  no 
doubt,  the  legal  delivery  results  from  the  fact  that  an  inten- 
tion that  the  instrument  shall  take  effect  is  thereby  shown, 
and  not  from  any  particular  virtue  in  the  manual  transfer. 
A  declaration  to  such  third  person  of  an  intention  that  the 
deed  shall  take  effect  would  seem  to  be  quite  as  effective  as 
a  manual  transfer  to  him,  if  it  can  be  satisfactorily  proven.^"* 
On  the  other  hand,  a  manual  transfer  of  the  deed  to  a  third 
person  without  any  expression,  by  word  or  act,  of  an  inten- 
tion to  make  it  operative,  does  not  constitute  a  delivery  ;^'^^ 
nor  does  such  a  transfer  to  the  grantee  himself,  if  the  trans- 

Xenos  V.  Wickham,  L.  R.  2  H.  L.  296;  Moore  v.  Hazelton,  9  Allen 
(Mass.)  102,  3  Gray's  Cas.  706;  Blight  v.  Schenck,  10  Pa.  St.  285,  3 
Gray's  Cas.  684;  Mitchell's  Lessee  v.  Ryan,  3  Ohio  St.  377,  3  Gray's 
Cas.  691;  Colee  v.  Colee,  122  Ind.  109,  17  Am.  St.  Rep.  345;  Stevens 
V.  Hatch,  6  Minn.  64  (Gil.  19) ;  Scrugham  v.  Wood,  15  Wend.  (N.  Y.) 
545,  30  Am.  Dec.  75;  Austin  v.  Pendall,  2  MacArthur  (D.  C.)  362; 
Wall  V.  Wall,  30  Miss.  91,  64  Am.  Dec.  147;  Ledgerwood  v.  Gault, 
2  Lea  (Tenn.)  643;  Otis  v.  Spencer,  102  III.  622,  40  Am.  Rep.  617; 
Ruckman  v.  Ruckman,  32  N.  J.  Eq.  259;  4  Kent's  Comm.  455. 

3T3  Sheppard's  Touchstone,  57;  4  Kent's  Comm.  455;  Doe  d.  Gar- 
nons  V.  Knight,  5  Barn.  &  C.  671,  3  Gray's  Cas.  646;  Xenos  v.  Wick- 
ham, L.  R.  2  H.  L.  312;  Jones  v.  Swayze,  42  N.  J.  Law,  279,  3  Gray's 
Cas.  732;  Colyer  v.  Hyden,  94  Ky.  180;  Tate  v.  Tate,  21  N.  C.  22; 
Sneathen  v.  Sneathen,  104  Mo.  201,  24  Am.  St.  Rep.  326;  Miller  v. 
Meers,  155  111.  284,- Finch's  Cas.  1085;  Eckman  v.  Eckman,  55  Pa.  St. 
269;  Foster  v.  Mansfield,  3  Mete.  (Mass.)  412,  3  Gray's  Cas.  675; 
Blight  V.  Schenck,  10  Pa.  St.  285,  3  Gray's  Cas.  684;  Church  v.  Gil- 
man,  15  Wend.  (N.  Y.)  656. 

374  Kane  v.  Mackin,  9  Smedes  &  M.  (Miss.)  387;  Linton  v.  Brown's 
Adm'rs  (C.  C.)  20  Fed.  455;  Diehl  v.  Emig,  65  Pa.  St.  320;  Vought's 
Ex'rs  V.  Vought,  50  N.  J.  Eq.  177;  Rushin  v.  Shields,  11  Ga.  636,  56 
Am.  Dec.  436;  Moore  v.  Hazelton,  9  Allen  (Mass.)  102;  Regan  v. 
Howe,  121  Mass.  424.    Contra,  Moore  v.  Collins,  15  N.  C.  384. 

375  Sheppard's  Touchstone,  57;  Mitchell's  Lessee  v.  Ryan,  3  Ohio 
St.  377,  3  Gray's  Cas.  691;  Jackson  v.  Phipps,  12  Johns.  (N.  Y.)  418, 
3  Gray's  Cas.  671;  Merrills  v.  Swift,  18  Conn.  257,  3  Gray's  Cas.  677. 

(929) 
Real  Prop. — 59. 


§  406  REAL  PROPERTY.  [Ch.   19 

fer  is  not  ■with  such  an  intention,  but  is  for  another  pur- 
pose.^'^^ 

The  fact  that  the  grantor  reserves  the  right  to  revoke  the 
conveyance  or  to  resume  control  of  the  instrument  shows 
conclusively  that  there  is  no  delivery,  since  it  negatives  an 
intention  that  title  shall  immediately  vest  in  the  gi-antee.^'^'^ 

The  fact  that  the  grantor  has  the  instrument  recorded, 
while  it  is  usually  regarded  as  raising  a  presumption  of  de- 
livery,^'^^  and,  if  accompanied  by  an  intent  to  thereby  make 
the  instmment  immediately  operative,  constitutes  deliv- 
ery,^"^  is  not  a  delivery  if  there  is  no  such  intent.^^'^     Upon 

"6Bovee  v.  Hinde,  135  111.  137;  Braman  v.  Bingham,  26  N.  Y.  483; 
Dwinell  v.  Bliss,  58  Vt.  353.  See  Merrills  v.  Swift,  18  Conn.  257,  6 
Gray's  Cas.  677. 

377  Cook  V.  Brown,  34  N.  H.  460,  3  Gray's  Cas.  709;  Doe  d.  Garnons 
V.  Knight,  5  Barn.  &  C.  671,  3  Gray's  Cas.  711;  Fisher  v.  Hall,  41  N.Y. 
416,  3  Gray's  Cas.  728;  Maynard  v.  Maynard,  10  Mass.  456,  3  Gray's 
Cas.  669;  Taft  v.  Taft,  59  Mich.  185;  Sneathen  v.  Sneathen,  104  Mo. 
201,  24  Am.  St.  Rep.  326;  Ruiledge  v.  Montgomery,  30  Ga.  899; 
Church  V.  Gilman,  15  Wend.  (N.  Y.)  656;  Critchfield  v.  Critchfield,  24 
Pa.  St.  100;  Lang  v.  Smith,  37  W.  Va.  725;  Duer  v.  James,  42  Md. 
492;  Berry  v.  Anderson,  22  Ind.  36;  Huey  v.  Huey,  65  Mo.  689. 

This  does  not  refer  to  the  control  of  the  paper  itself,  though  the 
language  of  some  of  the  cases  might  give  that  impression.  It  re- 
fers to  the  control  of  the  operation  of  the  instrument. 

sTsBoody  V.  Davis,  20  N.  H.  140,  51  Am.  Dec.  210;  Lewis  v.  Wat- 
son, 98  Ala.  479,  39  Am.  St.  Rep.  82;  Rushin  v.  Shields,  11  Ga.  636, 
56  Am.  Dec.  436;  Reed  v.  Douthit,  62  111.  348;  Pool  v.  Davis,  135  Ind. 
323;  McGee  v.  Allison,  94  Iowa,  527;  Den  d.  Farlee  v.  Farlee,  21  N.  J. 
Law,  279;  Rhine  v.  Robinson,  27  Pa.  St.  30;  Mitchell's  Lessee  v. 
Ryan,  3  Ohio  St.  377,  3  Gray's  Cas.  691;  Blight  v.  Schenck,  10  Pa.  St. 
285,  3  Gray's  Cas.  685;  Burke  v.  Adams,  80  Mo.  504,  50  Am.  Rep. 
510;  Laughlin  v.  Calumet  &  Chicago  Canal  &  Dock  Co.,  13  C.  C.  A.  1, 
65  Fed.  441;  Heil  v.  Redden,  45  Kan.  562;  Patrick  v.  Howard,  47 
Mich.  40;  McDaniel  v.  Anderson,  19  S.  C.  211;  Estes  v.  German 
Nat.  Bank,  62  Ark.  7;  Lay  v.  Lay  (Ky.)  66  S.  W.  371.  Contra,  Hill  v. 
McNichol,  80  Me.  209. 

.•!t;i  Kerr  v.  Birnie.  25  Ark.  225;  Issitt  v.  Dewey.  47  Neb.  196:  Snider 
V.  Lackenour,  35  N.  C.  360;  Fenton  v.  Miller,  94  Mich.  204;  Boody  v. 


Ch.  19]  TRANSFER  INTER  VIVOS.  §   406 

the  question  whether  the  signing,  sealing,  and  acknowledg- 
ment of  a  conveyance  raise  a  presumption  of  delivery,  the 
cases  appear  to  be  in  conflict  ;^®^  and  the  same  may  be  said  of 
the  effect  of  the  statement  in  the  attestation  clause  that  the 
conveyance  has  been  delivered.^^^  The  fact  that  the  parties 
treat  the  land  as  belonging  to  the  grantee  has  also  been  re- 
garded as  tending  to  show  a  delivery.^^^ 

— ^Delivery  in  escrow. 

A  conveyance  may  be  delivered  to  a  person  as  an  escrow, 
i.  e.,  a  scroll  or  writing,  to  be  held  by  him  until  the  per- 
formance of  a  condition  by  the  grantee.     Upon   the  per- 

Davis,  20  N.  H.  140,  51  Am.  Dec.  210.  But  in  Massachusetts  the 
leaving  of  a  deed  with  the  recording  officer,  without  any  other  act, 
or  any  words  indicating  an  intention  that  this  shall  constitute  a  de- 
livery, was  held  not  to  be  a  delivery  (Barnes  v.  Barnes,  161  Mass. 
381),  a  manual  delivery  to  such  officer  thus  standing  on  the  same 
plane  as  a  manual  delivery  to  any  third  person,  without  any  indi- 
cation of  a  purpose  that  the  deed  shall  take  effect.  A  statute  in  this 
state  now  provides  that  the  record  of  a  conveyance  shall  be  equiva- 
lent to  a  delivery  thereof  in  favor  of  any  bona  fide  purchaser.  Rev. 
Laws,  c.  127,  §  5. 

380  Derry  Bank  v.  Webster,  44  N.  H.  264,  3  Gray's  Cas.  723;  May- 
nard  v.  Maynard,  10  Mass.  456,  3  Gray's  Cas.  669;  Jackson  v.  Phipps, 
12  Johns.  (N.  Y.)  418,  3  Gray's  Cas.  671;  Davis  v.  Davis,  92  Iowa, 
147;  Hutton  v.  Smith,  88  Iowa,  238;  Jones  v.  Bush,  4  Har.  (Del.)  1; 
Hayes  v.  Davis,  18  N.  H.  600;  Hendricks  v.  Rasson,  53  Mich.  575; 
Thompson  v.  Jones,  1  Head  (Tenn.)  574;  Boardman  v.  Dean,  34  Pa. 
St.  252;  Bullitt  v.  Taylor,  34  Miss.  708,  69  Am.  Dec.  412. 

381  That  there  is  a  presumption  of  delivery  in  such  case,  see  Kille 
V.  Ege,  79  Pa.  St.  15;  Diehl  v.  Emig,  65  Pa.  St.  320;  Brann  v.  Mon- 
roe, 11  Ky.  Law  Rep.  324.  Contra,  Boyd  v.  Slayback,  63  Cal.  493, 
3  Gray's  Cas.  735;  Alexander  v.  De  Kermel,  81  Ky.  345. 

382  That  the  statement  in  the  attestation  clause  reciting  delivery  is 
insufficient,  see  Fisher  v.  Hall,  41  N.  Y.  416,  3  Gray's  Cas.  728;  Rushin 
V.  Shield,  11  Ga.  636.  Contra,  Moore  v.  Hazelton,  9  Allen  (Mass.) 
102,  3  Gray's  Cas.  706;  Currie  v.  Donald,  2  Wash.  (Va.)  58. 

383  Gould  V.  Day,  94  U.  S.  405;  Corley  v.  Corley,  2  Cold.  (Tenn.) 
520;  Williams  v.  Williams,  148  111.  426. 

(931) 


§   406  REAL  PROPERTY.  [Ch.    19- 

forinance  of  such  condition,  even  thougli  it  be  after  the  death 
of  the  grantor,  or  after  he  has  become  mentally  disabled,  the 
instrument  takes  eilect  as  of  the  time  of  the  original  deliv- 
gj.y_384  Strictly  speaking,  also,  the  instrument,  it  would 
seem,  should  date  back  to  the  original  delivery  as  against  the 
claims  of  intervening  purchasers  and  creditors  f^^  but  in  a 
number  of  cases  in  this  country  the  courts,  influenced,  per- 
haps, by  the  tendency  to  require  all  rights  to  appear  of  rec- 
ord as  against  subsequent  creditors,  have  held  that  an  inter- 
vening creditor  takes  precedence  of  the  rights  of  the  gran- 
tee.^^® 

An  escrow  is,  it  has  been  held,  utterly  invalid  to  transfer 
any  rights  until  the  performance  of  the  condition,  so  that, 
if  the  person  with  whom  it  is  deposited  wrongfully  yields 
possession  thereof  to  the  grantee,  it  cannot  transfer  any  title, 
even  though  the  claimant  thereunder  be  an  innocent  pur- 
chaser for  value.^^^     There  are,  however,  several  decisions 

3S4  sheppard's  Touchstone,  58,  59;  Hall  v.  Harris,  40  N.  C.  303,  3 
Gray's  Gas.  681;  Foster  v.  Mansfield,  3  Mete.  (Mass.)  412,  3  Gray's 
Gas.  675;  Ruggles  v.  Lawson,  13  Johns.  (N.  Y.)  285,  3  Gray's  Gas. 
673;  Price  v.  Pittsburgh,  Ft.  W.  &  C.  R.  Co.,  34  111.  13;  Davis  v. 
Glark,  58  Kan.  100;  Webster  v.  Kings  Gounty  Trust  Go.,  145  N.  Y. 
275. 

385  Sheppard's  Touchstone,  59;  4  Kent's  Gomm.  454;  Hall  v.  Harris, 
40  N.  G.  303,  3  Gray's  Gas.  681;  Shirley's  Lessee  v.  Ayres,  14  Ohio, 
307.  See  Whitfield  v.  Harris,  48  Miss.  710;  Price  v.  Pittsburgh,  Ft. 
W.  &  G.  R.  Go.,  34  111.  13. 

S86  Jackson  v.  Rowland,  6  Wend.  (N.  Y.)  666;  Prutsman  v.  Baker, 
30  Wis.  649,  11  Am.  Rep.  592;  Taft  v.  Taft,  59  Mich.  195,  60  Am. 
Rep.  291. 

387  Sheppard's  Touchstone,  59;  Smith  v.  South  Royalton  Bank,  32 
Vt.  341,  3  Gray's  Gas.  698;  Hinman  v.  Booth,  21  Wend.  (N.  Y.)  267, 
3  Gray's  Gas.  698;  Galhoun  Gounty  v.  American  Emigrant  Go.,  93 
U.  S.  127;  Heney  v.  Pesoli,  109  Gal.  53;  Taft  v.  Taft,  59  Mich.  195,  60 
Am.  Rep.  291;  Smith  v.  South  Royalton  Bank,  32  Vt.  341,  3  Gray's 
Gas.  698,  76  Am.  Dec.  179;  Harkreader  v.  Glayton,  56  Miss.  383,  31 
Am.  Rep.  369;  Jackson  v.  Rowley,  88  Iowa,  184;  Ober  v.  Pendleton,  30 

(932) 


Ch.   19]  TRANSFER  INTER  VIVOS.  §  406 

to  the  effect  that  an  innocent  purchaser  from  one  in  posses- 
sion of  the  land  cannot  be  affected  bj  the  fact  that  the  con- 
veyance to  his  grantor  was  an  escrow,  and  this  view  seems 
most  in  conformity  to  right  and  justice,  and  the  policy  of 
the  recording  laws.^^* 

A  distinction  is  taken,  in  some  of  the  cases,  between  an 
•escrow,  or  writing  not  to  take  effect  until  the  performance 
of  a  condition,  and  an  instrument  which  is  committed  to  a 
third  person,  with  directions  that  it  be  delivered  to  the  gran- 
tee on  the  happening  of  some  event  in  the  future,  in  which 
case,  it  is  said,  the  deed  takes  effect  immediately.^^^  A  con- 
veyance is,  so,  quite  frequently  committed  to  a  third  person, 
with  directions  that  it  be  delivered  by  him  to  the  grantee 
upon  the  grantor's  death.^^^  The  only  possible  distinction 
between  an  escrow  and  such  a  conveyance  seems  to  be  that 
the  latter,  if  it  passes  out  of  the  hands  of  the  depositary 
named,  is  valid  in  favor  at  least  of  a  bona  fide  holder.  In 
some  cases,  however,  it  is  denied  that  any  distinction  of  this 
kind  exists.^^^ 

Ark.  61;  Black  v.  Shreve,  13  N.  J.  Eq.  458;  Everts  v.  Agnes,  4  Wis. 
343,  65  Am.  Dec.  314. 

388  Blight  V.  Schenck,  10  Pa.  St.  285,  51  Am.  Dec.  478,  3  Gray's  Gas. 
'684;  Schurtz  v.  Golvin,  55  Ohio  St.  274;  Hubbard  v.  Greeley,  84  Me, 
340;  Quick  v.  Milligan,  108  Ind.  419,  58  Am.  Rep.  49.  And  see  Haven 
V.  Kramer,  41  Iowa,  382. 

389  Wheelwright  v.  Wheelwright,  2  Mass.  447,  3  Gray's  Gas.  663; 
Bushell  V.  Pasmore,  6  Mod.  217. 

390  Foster  v.  Mansfield,  3  Mete.  (Mass.)  412,  3  Gray's  Gas.  675; 
€ook  V.  Brown,  34  N.  H.  460,  3  Gray's  Gas.  709;  Hatch  v.  Hatch,  9 
Mass.  307;  Hathaway  v.  Payne,  34  N.  Y.  106;  Prutsman  v.  Baker,  30 
Wis.  649,  11  Am.  Rep.  592;  Bury  v.  Young,  98  Gal.  446,  35  Am.  St. 
Rep.  186;  Perkins,  143,  144;  4  Kent's  Gomm.  455;  Baker  v.  Baker, 
159  111.  394;  Hoffmire  v.  Martin,  29  Or.  240;  Sneathen  v.  Sneathen, 
104  Mo.  201.  24  Am.  St.  Rep.  326. 

391  State  Bank  at  Trenton  v.  Evans,  15  N.  J.  Law,  158,  28  Am.  Dec. 
400;  Johnson  v.  Baker,  4  Barn.  &  Aid.  440,  3  Gray's  Gas.  640.  See 
Stone  V.  Duvall,  77  111.  475;  Millett  v.  Parker,  2  Mete.  (Ky.)  608,  613. 

(933) 


g  406  REAL    PROPERTY.  [Ch.  19 

By  the  weight  of  authority,  an  instrument  cannot  be  de- 
livered to  the  grantee  as  an  escrow, — that  is,  a  manual  de- 
livery to  the  grantee,  if  it  is  to  take  effect  as  a  legal  delivery, 
must  do  so  immediately,  or  not  at  all.^^^  There  are,  how- 
ever, a  few  cases  adverse  to  this  view.^^^ 

Effect  of  delivery. 

After  the  delivery  of  a  conveyance,  and  the  consequent 
passing  of  the  title  thereby,  the  fact  that  the  grantee  returns 
the  written  instrument  to  the  grantor,  or  that  it  is  canceled 
by  agreement,  does  not  have  the  effect  of  retransferring  the 
title  to  the  grantor,  but  for  this  a  new  conveyance  is  neces- 
ggj.y  394  g^-,|.  ^^  i^^g  been  held  that,  when  the  grantee  can- 
cels the  conveyance,  or  delivers  it  up  to  the  grantor  to  be 
canceled,  with  the  intention  of  revesting  the  title,  since  he 
thereby  loses  all  evidence  of  his  title,  the  title  may  be  re- 
garded as  always  having  remained  in  the  grantor.^^^ 

392  Co.  Litt.  36a;  Sheppard's  Touchstone,  59;  Whyddon's  Case,  2 
Cro.  Eliz.  520,  3  Gray's  Cas.  635;  Braman  v.  Bingham,  26  N.  Y.  483; 
Arnold  v.  Patrick,  6  Paige  (N.  Y.)  310,  Finch's  Cas.  1088;  Richmond 
V.  Morford,  4  Wash.  337;  Ward  v.  Lewis,  4  Pick.  (Mass.)  518;  Mc- 
Cann  v.  Atherton,  106  111.  31;  Worrall  v.  Munn,  5  N.  Y.  229,  55  Am. 
Dec.  330;  Miller  v.  Fletcher,  27  Grat.  (Va.)  403,  21  Am.  Rep.  356, 
and  cases  cited;  Campbell  v.  Jones,  52  Ark.  493;  Gaston  v.  City  of 
Portland,  16  Or.  255;  Duncan  v.  Pope,  47  Ga.  445;  Hubbard  v.  Greeley, 
84  Me.  340. 

The  case,  before  referred  to,  of  a  transfer  of  possession  of  the  in- 
strument to  the  grantee  otherwise  than  with  an  intent  to  pass  title, 
is  to  be  distinguished.     See  ante,  note  376. 

393Newlin  v.  Beard,  6  W.  Va.  110;  Lee  v.  Richmond,  90  Iowa,  695; 
Hudson  V.  Revett,  5  Ring.  368,  388.  That  it  may  be  delivered  in 
escrow  to  the  grantee's  agent,  see  Watkins  v.  Nash,  L.  R.  20  Eq.  262; 
Ashford  v.  Prewitt,  102  Ala.  264,  48  Am.  St.  Rep.  37. 

394  Ward  V.  Lumley,  5  Hurl.  &  N.  87;  Strawn  v.  Norris,  21  Ark.  80; 
Gimon  v.  Davis,  36  Ala.  589;  Alexander  v.  Hickox,  34  Mo.  496,  86 
Am.  Dec.  118;  Jeffers  v.  Philo,  35  Ohio  St.  173;  Rifener  v.  Bowman, 
53  Pa.  St.  313;  Wilke  v.  Wilke,  28  Wis.  296;  Hatch  v.  Hatch,  9  Mass. 
311,  6  Am.  Dec.  67;  Co.  Litt.  225b,  Butler's  note. 

395  Farrar  v.  Farrar,  4  N.  H.  191;   Mussey  v.  Holt,  24  N.  H.  248,. 

(934) 


Ch.  19]  TRANSFER  INTER  VIVOS.  §  407 

§  407.     Acceptance. 

At  common  law,  a  deed  became  eflective  by  delivery,  with- 
out am'  assent  on  the  part  of  the  grantee,  thongh  he  could, 
after  learning  of  the  deed,  refuse  to  accept  it.  In  other 
words,  an  acceptance  of  the  deed  by  the  grantee,  or  even 
knowledge  on  his  part  of  its  execution,  is  unnecessary.^^* 
In  some  states  in  this  country'  it  has  accordingly  been  held 
that  a  conveyance  need  not  be  accepted  by  the  grantee,  or, 
which  is  the  same  thing,  its  acceptance  will  be  conclusively 
presumed,  even  as  against  third  persons,  until  the  grantee 
expresses  his  dissent.^^'^     In  other  states,  however,  it  is  de- 

55  Am.  Dec.  234;  Bank  of  New  Bury  v.  Eastman,  44  N.  H.  431.  See 
Thompson  v.  Thompson,  9  Ind.  323,  68  Am.  Dec.  638.  Respass  v. 
Jones,  102  N.  C.  5  (under  local  statute)  ;  Holbrook  v.  Tirrell,  9  Pick. 
(Mass.)  105;  Lawrence  v.  Stratton,  6  Cush.  (Mass.)  163.  See,  also, 
Wallace  v.  Harnstad,  44  Pa.  St.  492. 

390  Butler  v.  Baker,  3  Coke,  26a;  Degory  v.  Roe,  1  Leon.  152,  3 
Gray's  Cas.  634;  Thompson  v.  Leach,  2  Vent.  198,  3  Gray's  Gas.  639; 
Xenos  V.  Wickham,  L.  R.  2  H.  L.  296.  See  Skipwith's  Ex'r  v.  Cun- 
ningham, 8  Leigh  (Va.)  272. 

397  Mitchell's  Lessee  v.  Ryan,  3  Ohio  St.  377,  3  Gray's  Cas.  691; 
Skipwith's  Ex'r  v.  Cunningham,  8  Leigh  (Va.)  272;  Guggenheimer  v. 
Lockridge,  39  W.  Va.  461;  Merrills  v.  Swift,  18  Conn.  257,  46  Am. 
Dec.  315,  3  Gray's  Cas.  677;  Jones  v.  Swayze,  42  N.  J.  Law,  279,  3 
Gray's  Cas.  732;  Schlicher  v.  Keeler,  61  N.  J.  Eq.  394;  Moore  v.  Ha- 
zelton,  9  Allen  (Mass.)  102,  3  Gray's  Cas.  706;  Myrover  v.  French,  7S 
N.  C.  609;  Regan  v.  Howe,  121  Mass.  424  (semble) ;  Spencer  v.  Carr, 
45  N.  Y.  406,  6  Am.  Rep.  112;  Church  v.  Oilman,  15  Wend.  (N.  Y.) 
656;  Metcalfe  v.  Brandon,  60  Miss.  685  (semble);  Moore  v.  Giles,  4i> 
Conn.  570;  Wuester  v.  Polin,  60  Kan.  334  (semble).  So  it  has  been 
held  that  knowledge  by  the  grantee  of  the  deed  is  not  necessary. 
Mather  v.  Corliss,  103  Mass.  568;  Everett  v.  Everett,  48  N.  Y.  218; 
Snow  V.  Inhabitants  of  Orleans,  126  Mass.  453;  Elsberry  v.  Boykin, 
65  Ala.  336. 

In  the  case  of  a  conveyance  in  trust,  "although  the  trustee  may 
never  have  heard  of  the  deed,  the  title  vests  in  him,  subject  to  a  dis- 
claimer on  his  part."  Adams  v.  Adams,  21  Wall.  (U.  S.)  185;  Ames, 
Cas.  Trusts  (2d  Ed.)  227,  and  cases  cited  in  notes. 

(935) 


§   407  REAL    PROPERTY.  [Ch.    19 

cided  that  an  acceptance  by  the  grantee  is  necessarj,^^^  and 
occasionally  it  is  said  that,  while  an  acceptance  may  be  pre- 
sumed in  ordinary  cases,  this  is  not  so  if  the  conveyance  is 
subject  to  a  condition,  or  otherwise  imposes  an  obligation 
upon  the  grantee.^^^  Sometimes,  when  it  is  said  that  an  ac- 
ceptance will  be  presumed,  it  is  difficult  to  determine  wheth- 
er this  means  that  there  is  a  conclusive  presumption  to  this 
effect,  or  that  there  is  a  presumption  which  may  be  over- 
thrown by  evidence  that  the  grantee  had  no  knowledge  of  the 
instrument,  or  that  he  failed  to  indicate  his  acquiescence 
therein.  The  theory  that  an  actual  acceptance  is  necessary 
involves  almost  insuperable  difficulties  when  the  gTantee  is 

398  Welch  V.  Sackett,  12  Wis.  243,  3  Gray's  Gas.  714;  Oxnard  v. 
Blake,  45  Me.  602;  Jackson  v.  Phipps,  12  Johns.  (N.  Y.)  418,  3  Gray's 
€as.  671;  Hullck  v.  Scovil,  9  111.  159;  Cravens  v.  Rossiter,  116  Mo. 
338,  38  Am.  St.  Rep.  606;  Watson  v.  Hillman,  57  Mich.  607;  Meigs 
V.  Dexter,  172  Mass.  217;  Stallings  v.  Newton,  110  Ga.  875;  Alexander 
V.  De  Kermel,  81  Ky.  345;  Knox  v.  Clark  (Colo.  App.)  62  Pac.  334; 
Woodbury  v.  Fisher,  20  Ind.  387,  83  Am.  Dec.  325;  Hibberd  v.  Smith, 
67  Cal.  547,  56  Am.  Rep.  726;  Kempner  v.  Rosenthal,  81  Tex.  12; 
Tuttle  V.  Turner,  28  Tex.  759,  Finch's  Gas.  1088;  Day  v.  Griffith,  15 
Iowa,  104;  Wiggins  v.  Lusk,  12  111.  132;  Moore  v.  Flynn,  135  111.  74; 
Bell  V.  Farmer's  Bank  of  Kentucky,  11  Bush  (Ky.)  34,  21  Am.  Rep. 
205. 

This  view  is  apparently  based,  to  a  great  extent,  upon  the  theory 
that  a  conveyance  is  a  contract,  which  it  is  not,  though  frequently  it 
results  from  a  contract.  Title  passes  under  a  devise  without  the 
knowledge  or  consent  of  the  devisee,  and  there  seems  no  reason  why 
it  should  not  do  so  in  the  case  of  a  conveyance  inter  vivos.  There 
are  difficulties  in  the  application  of  the  common-law  rule,  as  is  well 
shown  in  Welch  v.  Sackett,  12  Wis.  270,  3  Gray's  Cas.  714,  in  case 
the  grantee  subsequently  refuses  to  take  the  property,  but  the  same 
is  true  in  the  case  of  an  unaccepted  devise.  The  fact  that  the  rule 
requiring  an  acceptance  breaks  down  utterly  in  the  case  of  a  con- 
veyance to  a  person  not  sui  juris  is  sufficient  in  itself  to  raise  doubts 
as  to  its  soundness  when  applied  in  other  cases. 

399Derry    Bank    v.    Webster,    44   N.    H.    264,    3    Gray's   Cas.    723; 
Jackson  v.  Bodlc,  20  Johns.  (N.  Y.)  184;  Elsberry  v.  Boykin,  65  Ala. 
336;  Johnson  v.  Farley,  45  N.  H.  505;  Hibberd  v.  Smith,  67  Cal.  547._ 
See  Mitchell's  Lessee  v.  Ryan,  3  Ohio  St.  377,  3  Gray's  Cas.  691. 

(03G) 


Ch.    19]  TRANSFER  INTER  VIVOS.  g   4O8 

sn  infant  or  an  insane  person,  and  in  such  cases  the  courts 
invariably,  it  seems,  presume  an  acceptance,'*"'^  or,  in  other 
"words,  adopt  the  common-law  rule. 

The  cases  requiring  the  acceptance  of  a  conveyance  do 
not  regard  such  acceptance  as  a  part  of  the  delivery,  but  hold 
that  it  may  take  place  at  any  subsequent  time,  even  after  the 
death  of  the  grantor,  the  title  remaining,  until  such  accept- 
ance, in  the  latter,  or,  presumably,  in  his  heirs  or  devisees. 

§  408.     Execution  by  agent. 

In  discussing  the  subject  of  those  proprietary  rights  known 
as  "powers,"  reference  was  made,  for  the  purpose  of  dis- 
tinguishing them,  to  powers  of  agency,  which  are  not  pro- 
prietary rights  enforceable  against  the  whole  world,  but  are 
merely  rights  of  representation,  usually  based  on  a  contract 
between  the  donor  and  donee  of  the  power, — that  is,  the 
principal  and  the  agent, — and  which  are  of  no  effect  as  re- 
gards third  persons  until  the  agent  acts  under  the  power. 
Such  a  power  of  agency  enters  into  the  subject  of  the  trans- 
fer of  land  by  reason  of  the  fact  that  the  owner  of  land  may 
transfer  it,  not  only  by  himself  executing  the  instrument  of 
transfer,  but  also  by  empowering  another  to  do  so  in  his  ab- 
sence. Such  a  power  or  authority,  given  to  another  to  trans- 
fer land,  must,  so  far,  at  least,  as  the  conveyance  is  required 
to  be  under  seal,  be  itself  under  seal,'*^^  and  it  is,  as  are  other 

400  Davis  V.  Garrett,  91  Tenn.  147;  Parker  v.  Salmons,  101  Ga.  160; 
Miller  v.  Meers,  155  111.  284.  Finch's  Cas.  1085;  Winterbottom  v.  Pat- 
tison  152  111.  334;  Tobin  v.  Bass,  85  Mo.  654,  55  Am.  Rep.  39:^;  East- 
liam  V.  Powell,  51  Ark.  530;  Campbell  v.  Kuhn,  45  Mich.  513,  40  Am. 
Rep.  479;  Bjmerland  v.  Eley,  15  Wash.  101;  Sneathen  v.  Sneathen, 
104  Mo.  201,  24  Am.  St.  Rep.  326. 

4oiHuffcut,  Agency  (2d  Ed.)  37;  Montgomery  v.  Dorion,  6  N.  H. 
250;  Heath  v.  Nutter,  50  Me.  378;  Cadell  v.  Allen,  99  N.  C.  542; 
Shuetze  v.  Bailey,  40  Mo.  69;  Blood  v.  Goodrich,  9  Wend.  (N.  Y.)  68, 
24  Am.  Dec.  121.  There  are  statutes  to  the  same  effect  in  many 
states.     1  Stimson's  Am.  St.  Law,  §  1670. 

(937) 


§   408  REAL   PROPERTY.  [Ch.  19" 

authorities  under  seal,  usually  known  as  a  "power  of  attor- 
ney." Such  an  execution  of  a  conveyance  by  an  agent  must 
be  distinguished  from  the  cases  before  referred  to,  in  which 
the  manual  signing  of  the  instrument  by  the  hand  of  another 
is  adopted  by  the  grantor  as  his  own  act,  this  being  for  all 
purposes  his  own  signature. 

According  to  some  decisions,  the  signature  of  a  conveyance- 
by  an  attorney  or  agent  must  be  in  the  name  of  the  principal, 
the  form  "A.  by  B."  thus  being  correct,  and  "B.  for  A."' 
being  incorrect.'*'^^  But  by  the  more  modern  decisions  thi& 
strictness  of  view  is  relaxed,  and  it  is  generally  regarded  as 
sufficient  if  it  appears  from  either  the  signature  or  from  the 
instrument  as  a  whole  that  the  instrument  is  the  deed,  not 
of  the  agent,  but  of  the  principal  ;^°^  and  in  some  states 
there  is  a  statutory  provision  to  this  effect.^'^'*  The  fact  that 
the  name  of  the  agent  himself  does  not  appear  in  the  signa- 
ture does  not  affect  the  validity  of  the  execution.^*^^  A  con- 
veyance which  fails  at  law,  because  its  execution  is  by  the 
agent  in  his  own  name,  instead  of  in  that  of  his  principal, 
will  be  sustained  in  equity  as  an  agreement  to  convey,  and, 
as  such,  will  be  effective,  not  only  between  the  parties,  but 
as  against  subsequent  purchasers  with  notice.'*'^ ^ 

40  2  Combe's  Case,  9  Coke,  75;  2  Kent's  Comm.  631;  Fowler  v. 
Shearer,  7  Mass.  14;  Elwell  v.  Shaw,  16  Mass.  42,  8  Am.  Dec.  126; 
Stinchfield  v.  Little,  1  Me.  231,  10  Am.  Dec.  65;  Carter  v.  Chaudron, 
21  Ala.  72;  Stone  v.  Wood,  7  Cow.  (N.  Y.)  453,  17  Am.  Dec.  529;  Mor- 
rison V.  Bowman,  29  Cal.  337;  Clarke's  Lessee  v.  Courtney,  5  Pet. 
(U.  S.)  318,  349;  Townsend  v.  Corning,  23  Wend.  (N.  Y.)  442. 

403  Shanks  v.  Lancaster,  5  Grat.  (Va.)  110,  50  Am.  Dec.  108;  Mc- 
Clure  V.  Herring,  70  Mo.  18;  Doe  d.  Tenant  v.  Roe,  27  Ga.  418;  Hale 
V.  Woods,  10  N.  H.  471;  Magill  v.  Hinsdale,  6  Conn.  464a;  Rogers 
V.  Bracken's  Adm'r,  15  Tex.  564;  Bigelow  v.  Livingston,  28  Minn. 
57;  Heffernan  v.  Addams,  7  Watts  (Pa.)   116. 

404  1  Stimson's  Am.  St.  Law,  §  1675. 

405  Forsyth  v.  Day,  41  Me.  382;  Berkey  v.  Judd,  22  Minn.  287; 
Devinney  v.  Reynolds,  1  Watts  &  S.  (Pa.)   328. 

406  Wilkinson  v.  Getty,  13  Iowa,  157,  81  Am.  Dec.  428;  Love  v. 
(938) 


Ch.  19]  TRANSFER  INTER  VIVOS.  §  408 

A  married  woman  has  power  to  transfer  her  rights  in  land 
only  in  the  mode  named  by  statute,  and  consequently,  in  the 
absence  of  express  statutory  authority,  or  a  declaration  that 
she  may  transfer  her  separate  estate  as  if  she  were  sole,  she 
cannot  execute  the  conveyance  by  an  agent  or  attorney,  and, 
if  so  executed,  it  will,  as  against  her,  be  void  both  at  law  and 
in  equity. ^^''^ 

Authority  to  an  agent  to  execute  a  conveyance  for  one  in- 
volves authority  in  him  to  acknowledge  the  instrument  for 
any  of  the  purposes  for  which  an  acknowledgment  is  nec- 
essary or  proper.^^^ 

Sierra  Nevada  Lake  Water  &  Min.  Co.,  32  Cal.  639,  91  Am.  Dec.  602; 
Ramage  v.  Ramage,  27  S.  C.  39;  McCaleb  v.  Pradat,  25  Miss.  257. 
See  Stark  v.  Starr,  94  U.  S.  477. 

407  Wilkinson  v.  Getty,  13  Iowa,  157;  Earle's  Adm'rs  v.  Earle,  20 
N.  J.  Law,  347;  Dentzel  v.  Waldie,  30  Cal.  138;  Holland  v.  Moon,  39 
Ark.  120;  Waddell  v.  Weaver's  Adm'rs,  42  Ala.  293;  Randall  v. 
Kreiger,  23  Wall.   (U.  S.)    137;   Mexia  v.  Oliver,  148  U.   S.  664. 

408  Robinson  v.  Mauldin,  11  Ala.  977;  Basshor  v.  Stewart,  54  Md. 
376;  Bigelow  v.  Livingston,  28  Minn.  57;  Richmond  v.  Voorhees,  10^ 
Wash.  316.     But  see  Gosselin  v.  City  of  Chicago,  103  111.  623. 

(939) 


CHAPTER  XX. 

TRANSFER  BY  WILL. 

§  409.  General  considerations. 

410.  Signing  by  testator. 

411.  Acknowledgment  and  publication. 

412.  Competency  of  witnesses. 

413.  Attestation  and  subscription. 

414.  Holographic  and  nuncupative  wills. 

415.  Undue  influence. 

416.  Lapsed  and  void  devises. 

417.  The  revocation  of  a  will. 

418.  Children  or  issue  omitted  from  will. 

419.  Revival  of  will. 

420.  Republication. 

Any  interests  in  land  may  be  transferred  by  will,  but,  apart 
from  specific  statutes  to  that  effect,  real  property  not  owned  by 
the  testator  at  the  time  of  making  the  will  cannot  pass  there- 
under. Statutes  now  exist  in  most,  if  not  all,  jurisdictions, 
allowing  one  to  dispose  of  real  property  afterwards  to  be  ac- 
quired by  him. 

Real  property  disposed  of  by  will  passes  directly  to  the  devi- 
see, and  not  to  the  personal  representative,  except  in  a  few 
states,  where  the  statute  otherwise  provides. 

A  will  must  be  in  writing,  signed  by  the  testator,  or,  in  some 
states,  by  another  in  his  presence.  The  will  must  be  attested 
by  witnesses,  before  whom  the  testator  must  acknowledge  the 
instrument  or  his  signature  thereto,  as  the  statute  may  require. 
The  witnesses  must  be  persons  competent  to  testify  in  regard 
to  the  will,  and  they  are  usually  required  to  sign  their  names  to 
the  instrument  in  the  testator's  presence. 

In  case  a  devise  fails,  owing  to  the  death  of  a  devisee,  before 
the  death  of  the  testator,  the  property  included  therein  passes 
(940) 


Ch.  20]  TRANSFER  BY  WILL.  §   409 

by  statute,  in  many  states,  to  the  child  or  issue  of  such  devisee, 
In  many  of  the  states,  in  the  absence  of  such  a  statute  appli- 
cable to  the  case,  the  property  will  pass  under  a  residuary 
devise. 

A  will  may  be  revoked  by  the  testator,  in  whole  or  in  part, 
by  its  cancellation  or  destruction,  or  by  a  subsequent  will  ex- 
pressly revoking  it,  or  making  a  different  disposition  of  part  or 
all  of  the  property.  The  will  of  a  woman  is,  as  a  rule,  revoked 
by  her  marriage,  and  of  a  man  by  his  marriage  and  the  birth 
of  issue. 

In  some  states,  an  earlier  will  is  revived  by  the  revocation  of 
a  later  will  which  revoked  the  former  will,  and  in  some  states 
this  is  the  case  when  there  is  an  intention  to  that  effect.  In 
others,  a  will  once  revoked  cannot  be  revived  otherwise  than  by 
the  re-execution  thereof. 

A  will  may  be  republished  by  its  re-execution,  or  the  execu- 
tion of  a  codicil. 

§  409.     General  considerations. 

While,  before  the  Norman  Conquest,  and  for  a  century 
thereafter,  persons  were  allowed  to  make  post  obit  gifts  of 
land,  to  take  effect  in  possession  after  the  death  of  the  donor, 
the  rule  was  established  by  the  king's  court,  late  in  the 
twelfth  century,  in  favor  of  the  heir,  that  a  transfer  of  a 
freehold  interest  in  land,  though  to  take  effect  only  after  the 
death  of  the  transferrer,  must  be  by  livery  of  seisin,  and  so 
any  transfer  of  such  an  interest,  answering  to  our  modern  will 
or  devise,  became  impossible,  except  in  the  case  of  certain 
lands  devisable  by  local  custom.^  Eventually  the  invention 
of  uses  enabled  one  to  devise  his  land  by  making  a  feoffment 
to  uses  to  be  declared  by  his  last  will,  in  w^hich  case  chancery 
would   enforce  the  use   so   declared.^      The  power   of   thus 

1  2  Pollock  &  Maitland,  Hist.  Eng.  Law,  324-329. 

2  1  Sanders,  Uses  &  Trusts  (5th  Ed.)  64;  Williams,  Real  Prop. 
(18th  Ed.)  167.     See  ante,  §  84. 

(941) 


§   409  REAL  PROPERTY.  [Ch.  20 

making  a  will  bj  the  declaration  of  a  use  was,  however,  put 
an  end  to  by  the  Statute  of  Uses,  this  being  in  fact  one  of 
the  purposes  of  its  passage,  as  recited  in  the  preamble.  But 
the  inconvenience  of  this  prohibition  of  testamentary  dispo- 
sition was  so  greatly  felt  that,  five  years  later,  the  Statute  of 
Wills^  was  passed,  by  which  statute  tenants  in  fee  simple 
were  empowered  to  dispose  of  all  their  lands  held  in  socage 
tenure,  and  two-thirds  of  those  held  by  knight  service,  and, 
after  the  change  of  all  tenures  into  socage  tenures,^  all  lands 
came  within  the  operation  of  this  statute,  and  were  devis- 
able.^ 

A  will  of  real  property  was  in  early  times,  and  likewise 
after  the  Statute  of  Wills,  regarded  as  a  species  of  convey- 
ance, to  take  effect  at  a  future  time, — that  is,  on  the  death 
of  the  testator.^  This  theory  had  important  results  upon 
the  law  of  wills  of  real  property,  as  distinct  from  wills  of 
personalty.  One  most  important  result  of  this  theory  was 
that,  since  one  could  convey  only  such  land  as  he  owned,  a 
will  could  operate  upon  such  real  property  only  as  the  tes- 
tator owned  at  the  time  of  making  the  will.'^  And  for  this 
reason,  if  one  aliened  property  covered  by  his  will,  and  sub- 
sequently acquired  it  by  a  reconveyance,  it  did  not  pass  under 
the  will.* 

This  rule  that  after-acquired  real  property  does  not  pass 
under  a  will  has  been  changed  by  statute  in  most,  if  not  all, 
jurisdictions.     In  England  the  Wills  Act^  provided  that  a 

332  Hen.  VIII.  c.  1   (A.  D.  1540). 

4  Ante,  §  13. 

5  See  Williams,  Real  Prop.  (18th  Ed.)  227;  Digby,  Hist.  Real  Prop, 
c.  8. 

6  2  Pollock  &  Maitland,  Hist.  Eng.  Law,  313;  Williams,  Real  Prop. 
(18th  Ed.)  232. 

7  Harwood  v.  Goodright,  1  Cowp.  87 ;  Brydges  v.  Chandos,  2  Ves. 
Jr.  417,  427;  Williams,  Real  Prop.  (18th  Ed.)  233. 

8  Post,  §  417. 

0  7  Wm.  IV.  and  1  Vict.  c.  26,  §§  3,  24  (A.  D.  1837). 

(942) 


•Ch.    20]  TRANSFER  BY  WILL.  g   409 

testator  might  dispose  of  all  real  and  personal  estate  to  which 
he  might  be  entitled  at  the  time  of  his  death,  and  that  every 
will  should,  in  the  absence  of  indications  of  a  contrary  in- 
tention, be  construed  to  take  effect,  with  reference  to  the 
real  and  personal  estate  comprised  in  it,  as  if  executed  imme- 
diately before  the  death  of  testator.  The  effect  of  these  pro- 
visions is  that  a  gift  in  general  terms,  such  as  "all  my  real 
estate,"  or  "all  my  property,"  or  "all  my  land,"  passes  after- 
acquired  interests,  unless  a  contrary  intention  appears,  and 
that  a  "residuary  devise" — that  is,  a  devise  of  al]  one's 
property  not  otherwise  disposed  of — has  the  same  effect. •^'^ 

In  some  of  the  states  there  are  statutes  substantially  sim- 
ilar to  those  in  England,^^  and  having  a  similar  operation.-^- 
In  other  states  the  statute  provides  that  after-acquired  real 
property  shall  pass  by  the  will  only  when  it  appears  from  the 
will  that  such  was  the  testator's  intention.^^ 

Another  effect  of  the  theory  that  a  devise  was  a  conveyance 
was  that  a  residuary  devise  was  regarded  as  a  specific  devise 
of  such  land  as  the  testator  owned  at  the  time  of  making  the 
will,  and  did  not  otherwise  dispose  of  therein, — a  matter 
which  will  be  considered  hereafter  more  particularly  in  con- 
nection with  "lapsed  and  void  devises."^^ 

A  further  result  of  this  theory  was  that  a  devise  of  real 
property,  unlike  a  legacy  of  personalty,  was  regarded  as  pass- 
ing the  land  directly  to  the  devisee,  without  the  intervention 
of  the  executor  or  administrator.      This  rule  still  prevails 

10  1  Jarman,  Wills,  291,  612. 

11 1  Stlmson's  Am.  St.  Law,  §§  2806,  2809. 

12  See  Webb  v.  Archibald,  128  Mo.  299;  Jacobs'  Estate,  140  Pa.  St. 
268. 

13  1  Stimson's  Am.  St.  Law,  §  2809  (C).  See  Church  v.  Warren 
Mfg.  Co.,  14  R.  L  539;  Briggs  v.  Briggs,  69  Iowa,  617;  Paine  v.  For- 
saith,  84  Me.  66;  Woman's  Union  Missionary  Soe.  of  America  v. 
Mead,  131  111.  338;  Kimhall  v.  Ellison,  128  Mass.  41. 

14  See  post,  §  416. 

(943) 


§   410  REAL  PROPERTY.  [Ch.   20 

in  the  majority  of  jurisdictions,  though  it  has  been  changed 
by  recent  statutes  in  England  and  a  few  states.-^  ^ 

The  king's  courts,  in  the  twelfth  century,  having  estab- 
lished the  principle  that  there  could  be  no  testamentary  gift 
of  land,  relinquished  the  jurisdiction  of  the  property  of  de- 
cedents to  the  ecclesiastical  courts,  and  thereafter  the  law  of 
succession  to  personal  property,  including  chattels  real,  was 
developed  by  these  latter  courts.^®  As  a  result,  the  civil-law 
conception  of  a  will,  not  as  a  conveyance,  but  as  a  secret  and 
revocable  instrument,  which  was  to  take  effect  at  the  death 
of  testator  only,  has  always  been  applied  in  the  case  of  per- 
sonalty ;^  "^  and  likewise  the  position  of  an  executor  or  admin- 
istrator as  the  personal  representative  of  the  deceased,  ta 
whom  all  his  personal  property  passes  on  his  death,  including 
that  disposed  of  by  will,  became  established  at  an  early 
date.i8 

§  410.     Signing  by  testator. 

In  all  states  the  statute  requires  that  a  will  shall  be  signed 
by  the  testator,  or,  in  the  majority  of  states,  by  some  other 
person,  by  the  testator's  express  direction,  and  in  his  pres- 
ence.^^  The  testator's  own  signature  may  be  by  means  of 
a  mark,  even  though  he  is  able  to  vsrrite,  provided  the  mark 
is  intended  as  a  signature  f^  and  so,  in  signing,  he  may  use- 
is  2  Woerner,  Administration,  §  337;  11  Am.  &  Eng.  Enc.  Lavr 
(2d  Ed.)  1037  et  seq. 

16  2  Pollock  &  Maitland,  Hist.  Eng.  Law,  329,  331. 

17  Holdsworth  &  Vickers,  Law  of  Succession,  31;  Maine,  Anc.  Law 
(4th  Ed.)  173  et  seq.;  Harwood  v.  Goodright,  Cowp.  87. 

18  2  Pollock  &  Maitland,  Hist.  Eng.  Law,  334,  345;  Digby,  Hist. 
Real  Prop.  (5th  Ed.)  380. 

19  1  Stimson's  Am.  St.  Law,  §  2640. 

20  Page,  Wills,  §  173;  Nickerson  v.  Buck,  12  Gush.  (Mass.)  332; 
Robinson  v.  Brewster,  140  111.  649,  33  Am.  St.  Rep.  265;  Plate's  Es- 
tate, 148  Pa.  St.  55,  33  Am.  St.  Rep.  805;  Bevelot  v.  Lestrade,  153: 
111.  625;  Rook  v.  Wilson,  142  Ind.  24,  51  Am.  St.  Rep.  163. 

(944) 


Ch.  20J  TRANSFER  BY  WILL.  §  410 

only  his  initials,  or  kis  Christian  name,  or  even  adopt  anoth- 
er name  than  his  own.^^  When  the  signature  is  by  si  per- 
son other  than  the  testator,  the  requirements  that  it  be  by 
his  direction  and  in  his  presence  must  be  strictly  complied 
with,'^  and,  apart  from  statute,  one  cannot  thus  sign  by  an- 
other.^^ 

In  regard  to  the  position  of  the  signature,  the  rules  in  the 
different  states  are  not  in  accord.  Under  statutes  which  fol- 
low the  English  Statute  of  Frauds  in  merely  requiring  that 
the  will  be  signed,  it  has  been  decided  that  the  place  of  the 
signature,  whether  by  the  testator  himself,  or  by  another  for 
him,  is  immaterial,  and  that  it  may  be  made  in  the  margin, 
in  the  body  of  the  will,  or  elsewhere.  Accordingly,  the  writ- 
ing of  the  testator's  name  in  the  body  of  the  will,  as  when  he 
conmiences  it,  "I,  John  B.,"  is  sufficient,  under  such  stat- 
utes, as  a  signature,  provided,  it  seems,  it  is  so  intended,  or 
at  least  another  signature  is  not  intended  to  be  added. ^^  By 
the  modern  English  statutes,  however,  and  by  those  of  a  num- 
ber of  the  states,  the  testator  must  "subscribe"  the  will,  or 
there  is  some  other  express  requirement  that  the  sig-nature 
appear  at  the  end  of  the  will.^^  Under  such  statutes  it  is 
usually  held  that  the  will  is  void  if  the  signature  is  followed 

21  Knox's  Estate,  131  Pa.  St.  220,  Chaplin,  Wills,  217;  In  re  Sa- 
vory, 15  Jur.  1042;  1  Jarman,  Wills,  79. 

22  Page,  Wills,  §§  175,  176;  Waite  v.  Frisbie,  45  Minn.  361;  Murry 
V.  Hennessey,  48  Neb.  608;  Armstrong's  Ex'r  v.  Armstrong's  Heirs, 
29  Ala.  538;  Greenough  v.  Greenough,  11  Pa.  St.  489.  See  Pool  v. 
Buffum,  3  Or.  438,  443. 

23  In  re  McElwaine,  18  N.  J.  Eq.  499;  Robins  v.  Coryell,  27  Barb. 
(N.  Y.)  559. 

24  Lemayne  v.  Stanley,  3  Lev.  1,  4  Gray's  Cas.  188,  Chaplin,  Wills, 
224;  Armstrong's  Ex'r  v.  Armstrong's  Heirs,  29  Ala.  538,  Chaplin, 
Wills,  224;  Miles'  Will,  4  Dana  (Ky.)  1;  Adams  v.  Field.  21  Vt.  256; 
Catlett  v.  Catlett,  55  Mo.  330.  See  In  re  Booth,  127  N.  Y.  109,  24 
Am.  St.  Rep.  429,  Chaplin,  Wills,  224. 

25  1  Jarman,  Wills,  81;  1  Stimson's  Am.  St.  Law,  §  2640. 

(945) 
Real  Prop.— 60. 


§  411  REAL  PROPERTY.  [Ch.    20 

by  clauses,  written  before  the  execution  and  publication  of 
the  will,  which  undertake  to  dispose  of  property,  or  to  ap- 
point an  executor  or  guardian,  while  it  is  not  void  if  the 
signature  is  followed  by  mere  explanatory  notes  or  direc- 
tions.^'' The  signature  may  be  either  before  or  after  the 
^'attestation"  clause,^"^  the  nature  of  which  is  explained  in 
another  section.  If  writing  is  added  below  the  signature 
subsequently  to  the  execution  and  publication  of  the  will,  it 
is  merely  an  attempted  codicil,  not  affecting  the  validity  of 
the  will  as  expressed  in  the  writing  before  the  signature.-^ 

§  411.     Acknowledgment  and  publication. 

The  statute  sometimes  requires  testator's  signature  to  be 
acknowledged  by  him  before  witnesses,  usually  as  an  alterna- 
tive to  his  actual  signature  of  the  will  in  their  presence. ^^ 
"No  particular  words  of  acknowledgment  are  necessary,  it 
being  sufficient  that  he  indicates  to  the  witnesses,  either  by 
words  or  acts,  that  he  regards  the  signature,  which  is  visible 
to  them,  as  his  act.^*^ 

There  is  also,  in  some  states,  a  requirement  that  the  tes- 
tator acknowledge,  in  the  presence  of  witnesses,  that  the  in- 
strument is  his  last  will  and  testament,  this  constituting  what 
is  known  as  the  "publication"  of  the  will.^^      The  publica- 

^0  Sisters  of  Charity  of  St.  Vincent  de  Paul  v.  Kelly,  67  N.  Y. 
409;  In  re  Whitney,  153  N.  Y.  259,  60  Am.  St.  Rep.  616;  Wineland's 
Appeal,  118  Pa.  St.  37;  Bigelow,  Wills,  46. 

2- Younger  v.  Duffie,  94  N.  Y.  535,  46  Am.  Rep.  156;  Hallowell  v. 
Hallowell.  88  Ind.  251;  Page,  Wills,  §  183. 

28  In  re  Jacobson,  6  Dem.  Sur.   (N.  Y.)  298,  Chaplin,  Wills,  229. 

29  1  Stimson's  Am.  St.  Law,  §  2642.  See  Ludlow  v.  Ludlow,  36 
N.  J.  Bq.  597;  Sisters  of  Charity  of  St.  Vincent  de  Paul  v.  Kelly,  67 
N.  Y.  409. 

30  Page,  Wills,  §  205;  Allison  v.  Allison,  46  111.  61;  Turner  v.  Cook, 
36  Ind.  129;  Smith  v.  Holden,  58  Kan.  535;  In  re  Laudy,  148  N.  Y. 
403. 

311  Stimson's  Am.  St.  Law,  §  2642;  Bigelow,  Wills,  47. 

(1U6) 


Ch.   20]  TRANSFER  BY  WILL.  §   412 

tion,  however,  like  the  acknowledgment  of  the  signature, 
need  not  be  bj  express  declaration,  the  testator's  mere  as- 
sent to  a  statement  by  another,  or  incidental  reference  to  the 
instriunent  as  his  will,  being  sufficient,  if  it  plainly  informs 
the  witnesses  that  the  instrument  is  his  will.^^  In  the  ab- 
sence of  a  statutory  requirement,  it  is,  by  the  weight  of  au- 
thority, unnecessary  that  the  testator  inform  the  witnesses 
that  the  instrument  is  his  will.^^ 

§  412.     Competency  of  witnesses. 

The  state  statutes,  with  few,  if  any,  exceptions,  require 
the  signature,  or  acknowledgment  thereof,  to  be  in  the  pres- 
ence of  two  and  sometimes  three  witnesses,^'*  and  also,  as 
just  stated,  publication  of  the  will  as  such  in  the  presence 
of  witnesses  is  frequently  required.  If  there  be  less  than 
the  statutory  number  of  competent  witnesses,  the  will  is 
void.^^  The  statute  usually  requires  the  witness  to  be  "com- 
petent" or  "credible,"^^  and  the  term  "credible"  is  con- 
strued as  meaning  the  same  as  " competent. "^^  It  is  suffi- 
cient that  the  competency  exists  at  the  date  of  the  will ;  and 
the  fact  that  the  witness  subsequently  becomes  incompetent 

32  Gilbert  v.  Knox,  52  N.  Y.  125;  Grimm  v.  Tittman,  113  Mo.  56; 
Ludlow  V.  Ludlow,  36  N.  J.  Eq.  597;  Hildreth  -v.  Marshall,  51  N.  J. 
Eq.  241. 

33  White  V.  Trustees  of  British  Museum,  6  Bing.  310,  4  Gray's 
Cas.  250;  Moodie  v.  Reid,  7  Taunt.  355;  Barnewall  v.  Murrell,  108 
Ala.  366;  Dickie  v.  Carter,  42  111.  376;  Turner  v.  Cook,  36  Ind.  129; 
Osborn  v.  Cook,  11  Cush.  (Mass.)  532,  59  Am.  Dec.  155;  Watson  v. 
Pipes,  32  Miss.  451;  Canada's  Appeal  from  Probate,  47  Conn.  450; 
In  re  Hulse's  Will,  52  Iowa,  662. 

34  1  Stimson's  Am.  St.  Law,  §  2644. 

35  See  Cureton  v.  Taylor,  89  Ga.  490;  Poore  v.  Poore,  55  Kan.  687; 
Simmons  v.  Leonard,  91  Tenn.  183,  30  Am.  St.  Rep.  875. 

36  1  Stimson's  Am.  St.  Law,  §  2646. 

37  Page,  Wills,  §  191;  Amory  v.  Fellowes,  5  Mass.  219;  Combs' 
Appeal,  105  Pa.  St.  158;  In  re  Noble's  Will,  124  111.  266;  Brown  v. 
Pridgen,  56  Tex.  124. 

(947) 


§  412  REAL  PROPERTY.  [Ch    20 

to  testify  does  not  invalidate  the  will,  though  it  may  neces- 
sitate that  the  will  be  proven  by  secondary  evidence.^ ^  In 
other  words,  the  statutory  requirement  as  to  the  witnesses 
necessary  to  attest  the  execution  of  a  will  is  entirely  distinct 
from  the  question  as  to  how  the  will  shall  be  proved  after  the 
testator's  death,  though  such  proof  is  by  means  of  the  at- 
testing witnesses,  if  they  are  then  competent  to  testify,  and 
are  accessible.^^ 

The  competency  of  an  attesting  witness  is,  as  a  general 
rule,  determined  by  the  consideration  whether  the  witness  is 
a  person  competent  to  testify  in  a  court  of  justice  in  regard 
to  the  will,  and  questions  have  frequently  arisen  as  to  the 
competency  of  particular  persons  at  common  law,  and  under 
modern  statutory  provisions.  At  common  law,  a  beneficiary 
under  the  will  was  not  a  competent  witness,  because,  by  the 
rules  prevailing  in  courts  of  justice,  one  interested  in  liti- 
gation could  not  testify  therein.'*'^  Since  this  rule  had  the 
effect  of  frequently  invalidating  a  will  merely  because  a  wit- 
ness had  a  small  interest  thereunder,  an  act  was  passed  pro- 
viding that  the  testamentary  provision  in  favor  of  the  wit- 
ness should  be  void,  and  that  he  should  be  regarded  as  .a 
competent  witness.^^  In  this  country  there  are  statutes  of  a 
more  or  less  similar  character  in  most  of  the  states,  it  being 

38Brograve  v.  Winder,  2  Ves.  Jr.  636;  Sears  v.  Dillingham,  12 
Mass.  358,  4  Gray's  Cas.  236;  Stewart  v.  Harriman,  56  N.  H.  25; 
In  re  Holt's  Will,  56  Minn.  33,  45  Am.  St.  Rep.  434;  Higgins  v. 
Carlton,  28  Md.  115,  92  Am.  Dec.  666;  Gillis  v.  Gillis,  96  Ga.  1,  51 
Am.  St.  Rep.  121;  Fisher  v.  Spence,  150  111.  253;  Warren  v.  Baxter, 
48  Me.  193;  Hopf  v.  State,  72  Tex.  281.  The  statute  so  provides  in 
a  number  of  states.     1  Stimson's  Am.  St.  Law,  §  2647. 

39  Cheatham  v.  Hatcher,  30  Grat.  (Va.)  56,  32  Am.  Rep.  650; 
Trustees  of  Theological  Seminary  of  Auburn  v.  Calhoun,  25  N.  Y. 
422;   Carlton  v.  Carlton,  40  N.  H.  14. 

40  1  Jarman,  Wills,  69;  Holdfast  v.  Dowsing,  2  Strange,  1253,  4 
Gray's  Cas.  231. 

41  25  Geo.  II.  c.  6;  7  Wm.  IV.  and  1  Vict.  c.  26,  §  14. 
(948) 


Ch.  20]  TRANSFER  BY  WILL.  §  412 

usually  declared,  as  in  England,  that  the  devise  or  bequest 
to  the  witness  shall  be  void,  but  frequently  with  a  provision 
giving  such  witness  what  he  would  have  taken,  in  the  absence 
of  the  will,  by  descent  or  distribution,  to  the  extent  that  this 
does  not  exceed  the  devise  or  bequest.'*^  A  mere  charge  upon 
land  in  favor  of  a  witness  for  the  payment  of  debts  due  him 
will  not,  however,  in  most  states,  affect  his  competency.^^ 
And  the  statute  also,  in  effect,  frequently  provides  that  the 
witness  shall  not  lose  the  benefit  of  such  a  provision  if  there 
are  enough  witnesses  without  him.'*^ 

At  common  law,  a  husband  or  wife  is  incompetent  as  a 
witness  in  regard  to  any  matter  in  which  the  other  has  a  pe- 
cuniary interest,  and  accordingly,  in  the  absence  of  a  statute 
to  the  contrary,  a  husband  or  wife  of  a  devisee  or  a  legatee 
is  not  a  competent  witness  to  the  will.^^  The  modern  stat- 
utes, however,  removing  the  disability  of  the  husband  and 
wife  of  a  party  in  interest  to  testify,  have  in  some  states 
been  construed  as  removing  the  incompetency  as  an  attesting 
witness  to  a  will.^^  A  statute  invalidating  a  provision  in 
favor  of  a  witness  in  order  to  render  the  witness  competent 
has  occasionally  been  construed  to  apply  to  a  provision  in 
favor  of  the  husband  of  a  witness.^ ''^  Such  a  statute  has  not, 
however,  usually  been  given  such  a  construction.^^     In  a 

42 1  Stimson's  Am.  St.  Law,  §§  2650,  2651. 
43  1  Stimson's  Am.  St.  Law,  §  2648. 

4*1  Stimson's  Am.  St.  Law,  §  2650;  1  Woerner,  Administration, 
§  41. 

45  Windham  v.  Clietwynd,  1  Burrows,  414,  424;  Fislier  v.  Spence, 
150  III.  253;   Sullivan  v.  Sullivan,  106  Mass.  474,  4  Gray's  Gas.  243; 

Winslow  V.  Kimball,  25  Me.  493,  4  Gray's  Gas.  239;  Rucker  v.  Lamb- 
din,  12  Smedes  &  M.  (Miss.)  230;  Hodgman  v.  Kittredge,  67  N. 
H.  254;  Giddings  v.  Turgeon,  58  Vt.  106. 

46  In  re  Holt's  Will,  56  Minn.  33;  Lippincott  v.  Wikoff,  54  N.  J. 
Eq.  107;  Hawkins  v.  Hawkins,  54  Iowa,  443,  Chaplin,  Wills,  304. 

47  Winslow  V.  Kimball,  25  Me.  493,  4  Gray's  Gas.  239;  Jackson  v. 
Durland,  2  Johns.  Gas.   (N.  Y.)  314. 

48  Sullivan  v.  Sullivan,  106  Mass.  474,  4  Gray's  Gas.  243,  Ghaplin, 

(949) 


§   413  REAL  PROPERTY.  [Ch.   20 

number  of  states  a  devise  or  legacy  to  the  husband  or  wife  of 
a  subscribing  witness  is  expressly  made  void  by  the  statute.^^ 

§  413.     Attestation  and  subscription. 

The  witnesses  as  to  the  execution  or  publication  of  a  will 
are  required,  usually,  not  only  to  witness  the  performance 
of  these  acts  by  testator,  but  also  to  sign  their  names  upon 
the  instrument  "in  the  presence  of"  testator,  and  sometimes 
"in  the  presence  of"  each  other.^^  The  question  of  what 
constitutes  "presence,"  within  this  requirement,  has  been 
the  subject  of  numerous  decisions,  of  a  somewhat  conflicting 
character.  The  testator  and  the  witnesses  need  not,  it  has 
been  held,  be  in  the  same  room,  in  order  to  render  the  sig- 
natures of  the  latter  "in  the  presence  of"  the  former,  it  be- 
ing sufficient  that  he  sees  them,  as  through  a  door  or  win- 
dow f^  and  though  the  testator  does  not  actually  see  the  wit- 
nesses sign,  this  is  usually  regarded  as  taking  place  in  his 
presence,  if  he  is  physically  able,  by  shifting  his  gaze,  to  see 
the  act  of  signing,  provided  he  can  do  this  without  pain  or 
danger  to  life.^^  He  must  know  what  the  witnesses  are  do- 
ing,^^  and  the  signing  is  not  in  his  presence  if  he  is  in  such 
a  state  mentally  as  not  to  have  such  knowledge.^^     When 

Wills,  299;  Fisher  v.  Spence,  150  111.  253;  Hodgman  v.  Kittredge, 
67  N.  H.  254;  Giddings  v.  Turgeon,  58  Vt.  106.  See  In  re  Holt's 
Will,  56   Minn.  33. 

49  1  Stimson's  Am.  St.  Law,  §  2650. 

50  1  Stimson's  Am.  St.  Law,  §  2644. 

51  Shires  v.  Glascock,  2  Salk.  688,  4  Gray's  Gas.  247;  Casson  v. 
Dade,  1  Brown  Ch.  99,  4  Gray's  Gas.  250;  Ambre  v.  Weishaar,  74r 
111.  109;   Riggs  V.  Riggs,  135  Mass.  238. 

52  Page,  Wills,  §S  210-212;  1  Jarman,  Wills,  89  et  seq.;  Bigelow, 
Wills,  55.  See  Hamlin  v.  Fletcher,  64  Ga.  549;  Maynard  v.  Vinton, 
59  Mich.  139;  Watson  v.  Pipes,  32  Miss.  451;  Drury  v.  Connell,  177 
111.  43;   Riggs  v.  Riggs,  135  Mass.  238. 

53  1  Jarman,  Wills,  89;   Watson  v.  Pipes,  32  Miss.  451. 

54  Right  V.  Price,  1  Doug.  241;  Chappell  v.  Trent,  90  Va.  849. 
(950) 


Ch.   20]  TRANSFER  BY  WILL.  §   414 

the  Avill  is  signed  in  the  room  in  which  testator  is,  there  is,  it 
seems,  a  presumption  that  the  requirement  is  satisfied.^' 

§  414.     Holographic  and  nuncupative  wills. 

By  statute  in  a  number  of  states,  ''holographic"  wills — 
that  is,  wills  entirely  written  by  testator  himself — are  valid, 
though  not  executed  in  accordance  with  the  ordinary  statu- 
tory requirements,  if  signed  by  him,  and  if,  in  two  states  at 
least,  found  among  the  valuable  papers  and  effects  of  de- 
ceased. ^^ 

"'Nuncupative"  wills — that  is,  wills  consisting  of  merely 
oral  declarations  by  testator  in  the  presence  of  witnesses — 
were  allowed  before  the  passage  of  the  Statute  of  Frauds,  but 
by  that  statute  the  right  to  make  them  was  greatly  restricted^ 
the  amount  of  property  which  could  be  so  disposed  of  being 
greatly  limited,  and  it  also  being  provided  that  they  could  be 
made  only  in  the  last  sickness  of  deceased,  before  three  wit- 
nesses, and  usually  in  his  own  habitation.  In  this  country 
there  are  usually  statutory  provisions  of  a  somewhat  similar 
character,  providing  especially,  however,  for  the  making  of 
such  wills  by  soldiers  in  actual  military  service,  and  by  mari- 
ners at  sea.  The  law  of  nuncupative  wills  never  applied  in 
England  to  real  property,  in  the  absence  of  a  local  custom  to 
the  contrary,  since,  before  the  Statute  of  Wills,  such  prop- 
erty could  not  be  devised,  and  since,  by  the  terms  of  that 
statute,  as  well  as  by  the  Statute  of  Frauds,  a  will  of  lands 
was  required  to  be  "in  writing."  The  statutes  on  the  sub- 
ject in  this  country  usually  restrict  such  wills  to  "real  prop- 
erty."" 

53  Neil  V.  Neil.  1  Leigh  (Va.)  6;  Stewart  v.  Stewart,  56  N.  J.  Eq. 
761;   Watson  v.  Pipes,  32  Miss.  451. 

5'i  1  Stimson's  Am.  St.  Law,  §  2645.     See  Page.  Wills,  §§  229-231. 

sTBigelow,  Wills,  63  et  seq.;  Page,  Wills,  §§  232-240;  1  Stimson's 
Am.  St.  Law,  §§  2700-2705. 

(951) 


§   415  REAL  PROPERTY.  [Ch.  20 

^  415.     Undue  influence. 

The  question  whether  a  certain  testamentary  disposition 
was  the  result  of  the  exercise  of  "undue  influence"  upon  the 
testator  is  the  subject  of  frequent  litigation.  The  courts 
have  not  been  very  successful  in  defining  what  constitutes 
undue  influence  sufficient  to  defeat  a  testamentary  provision, 
hut  it  is  stated,  in  a  general  way,  that  it  must  be  such  per- 
suasion or  importunity  as  to  overpower  the  will  of  the  tes- 
tator, without  convincing  his  judgment,^* — that  is,  it  involves 
a  substitution  of  another  person's  will  for  that  of  testa- 
tor.^^  But  the  mere  fact  that  one  persuades  the  testator  to 
make  a  will  in  his  favor,  or  induces  him  to  do  so  by  argu- 
ment or  flattery,  does  not,  of  itself,  show  undue  influence,  ®° 
and  so  "appeals  to  the  affections  or  ties  of  kindred,  to  a  sen- 
timent of  gratitude  for  past  services,  or  pity  for  future  des- 
titution, or  the  like,"  are  legitimate,  and  do  not  affect  the 
validity  of  the  will.^^ 

The  question  of  undue  influence  is  entirely  distinct  from 
that  of  the  mental  capacity  of  the  testator  to  make  a  will, 
which  will  hereafter  be  considered  f"  but  the  fact  that, 
though  mentally  capable  of  making  a  will,  he  is  wanting  in 

58  Hall  V.  Hall,  L.  R.  1  Prob.  &  Div.  481,  4  Gray's  Gas.  144;  Gog- 
hill  V.  Kennedy,  119  Ala.  641;  Herster  v.  Herster,  122  Pa.  St.  239, 
9  Am.  St.  Rep.  95;  Gay  v.  Gillilan,  92  Mo.  250,  1  Am.  St.  Rep.  712. 

59  Wingrove  v.  Wingrove,  11  Prob.  Div.  81,  4  Gray's  Gas.  154; 
Riley  v.  Sherwood,  144  Mo.  354;  Maynard  v.  Vinton,  59  Mich.  139, 
60  Am.  Rep.  276;  Schmidt  v.  Schmidt,  47  Minn.  451;  Waddington, 
V.  Buzby,  45  N.  J.  Eq.  173,  14  Am.  St.  Rep.  706. 

eoMcDaniel  v.  Grosby,  19  Ark.  533;  Yoe  v.  McCord,  74  111.  33; 
Schofield  V.  Walker,  58  Mich.  96,  106;  Bush  v.  Lisle,  89  Ky.  393, 
Chaplin,  Wills,  103;  Hughes  v.  Murtha,  32  N.  J.  Eq.  288;  Trost  v. 
Dingier,  118  Pa.  St.  259,  4  Am.  St.  Rep.  593;  1  Woerner,  Administra- 
tion,  §  31. 

Gi  Hall  V.  Hall,  L.  R.  1  Prob.  &  Div.  481,  4  Gray's  Gas.  144,  Ghap- 
lin.  Wills.  99;  In  re  Mondorf's  Will,  110  N.  Y.  450;  Gay  v.  Gillilan, 
92  Mo.  250,  1  Am.  St.  Rep.  712;  Bevelot  v.  Lestrade,  153  111.  625. 

62  See  post.  §  503. 
(952) 


i2h.    20]  TRANSFER  BY  WILL.  §  416 

physical  and  mental  vigor,  is  usually  an  important  considera- 
tion in  determining  the  question  of  undue  influence."^ 

The  fact  that  a  beneficiary  under  the  will  sustains  a  con- 
fidential relation  towards  testator,  such  as  that  of  attorney  or 
guardian,  does  not  of  itseK,  according  to  some  authorities, 
raise  a  presumption  of  undue  influence  sufficient  to  overthrow 
the  will,  though,  under  such  circumstances,  much  slighter 
evidence  of  improper  acts  on  the  part  of  the  beneficiary  will 
be  required  than  ordinarily. ^^  By  some  decisions,  however, 
the  mere  existence  of  the  confidential  relation  raises  a  pre- 
sumption that  the  will  is  invalid.^'^  That  a  beneficiary  who 
is  not  a  near  relative  himself  prepared  the  instrument  is  usu- 
ally regarded  as  tending  to  show  undue  influence.^® 

§  416.     Lapsed  and  void  devises. 

As  a  consequence  of  the  "ambulatory"  nature  of  a  will, 
which  prevents  its  operation  until  the  death  of  the  testator, 
the  death  of  a  devisee  or  legatee  during  the  testator's  lifetime 
will,  in  the  absence  of  a  statute  to  the  contrary,  render  the 

63  Griffith  V.  Diffenderffer,  50  Md.  466;  Sullivan  v.  Foley,  112  Mich. 
1;  Shailer  v.  Btimstead,  99  Mass.  112;  Waddington  v.  Buzby,  45 
N.  J.  Eq.  173,  14  Am.  St.  Rep.  706. 

64  Downey  v.  Murphey,  18  N.  C.  82,  4  Gray's  Gas.  156;  Parfitt  v. 
Lawless,  L.  R.  2  Prob.  &  Div.  462,  4  Gray's  Gas.  146;  Carter  v.  Dixon, 
«9  Ga.  82;  Bancroft  v.  Otis,  91  Ala.  279;  Denning  v.  Butcher,  91 
Iowa,  425;  In  re  Smith's  Will,  95  N.  Y.  516;  Bigelow,  Wills,  89. 

65  Connor  v.  Stanley,  72  Cal.  556,  1  Am.  St.  Rep.  84,  note;  Miller 
V.  Miller,  187  Pa.  St.  572;  Hartman  v.  Strickler,  82  Va.  225;  Car- 
roll V.  Hause,  48  N.  J.  Eq.  269,  27  Am.  St.  Rep.  469;  Gay  v.  Gillilan, 
92  Mo.  250,  1  Am.  St.  Rep.  712;  Meek  v.  Perry,  36  Miss.  190,  244; 
1  Woerner,  Administration,  §  32. 

68  Richmond's  Appeal,  59  Conn.  226,  21  Am.  St.  Rep.  85;  Coghill 
V.  Kennedy,  119  Ala.  641;  Montague  v.  Allan's  Ex'r,  78  Va.  592,  49 
Am.  Rep.  384;  Bush  v.  Delano,  113  Mich.  321;  Yardley  v.  Cuthbert- 
son,  108  Pa.  St.  395,  56  Am.  Rep.  218;  In  re  Barney's  Will,  70  Vt. 
352;  Barry  v.  Butlin,  1  Curt.  Ecc.  637,  4  Gray's  Cas.  137;  Bigelow, 
Wills,  87,  89.     Compare  Carter  v.  Dixon,  69  Ga.  82. 

(953) 


§    416  REAL  PROPERTY.  [Ch.  20^ 

gift  absolutely  void.*^^  And  so  a  devise  or  legacy  to  a  cor- 
poration may  lapse  or  become  void  by  the  dissolution  of  the 
corporation  before  testator's  death.^^  The  testator  may, 
however,  make  a  substitutionary  gift  of  that  particular  prop- 
erty in  case  the  other  gift  fails  owing  to  the  death  of  the- 
beneficiary,  or  for  other  reasons,  and  this  will  be  carried  out 
by  the  courts.^^  The  fact  that  the  gift  is  in  terms  to  one' 
"and  his  heirs"  does  not,  of  itself,  show  any  intention  tc 
make  a  substitutionary  gift  to  the  heirs,  since  this  is  a  word 
merely  of  limitation,  and  not  of  purchased*'  In  some  cases, 
however,  the  use  of  the  words  "and  heirs"  has  been  construed 
as  constituting  a  substitutional  gift  to  the  heirs, '^^  and  this^ 

is  the  effect  usually  given  to  a  provision  for  one  "or  his^ 
heirs."'^2 

In  most  of  the  states  there  is  at  the  present  day  a  statutory 
provision  naming  certain  persons  who  may  take  in  case  of 
the  death  of  the  beneficiary  during  the  lifetime  of  the  testa- 
tor. In  many  states  it  is  provided  that  a  devise  or  bequest 
to  a  child  or  other  descendant  of  the  testator  shall,  in  case  of 
the  death  of  the  devisee  or  legatee  before  the  testator,  pass 
to  the  issue  of  such  devisee  or  legatee.^^  In  some,  the  same, 
provision  is  made  in  favor  of  the  issue  of  any  devisee  or  leg- 

67  1  Jarman,  Wills,  307;  2  Woerner,  Administration,  §  434. 

68  Page,  Wills,  §  740;  Merrill  v.  Hayden,  86  Me.  133;  Crum  v. 
Bliss,  47  Conn.  592. 

69  1  Jarman,  Wills,  308;  Page,  Wills,  §  741;  Gilmor's  Estate,  154 
Pa.  St.  523;  Rivers  v.  Rivers,  36  S.  C.  302. 

70  Maxwell  v.   Featherston,   83  Ind.  339;    In  re   Wells,   113   N.  Y. 
.396;   Kimball  v.  Story,  108  Mass.  382;  Hand  v.  Marcy,  28  N.  J.  Eq. 

59. 

71  Gilmor's  Estate,  154  Pa.  St.  523 ;  Gittings  v.  McDermott,  2  Mylne 
&  K.  69,  73;   2  Woerner,  Administration,  §  434. 

72  2  Woerner,  Administration,  §§  417,  434;  Hand  v.  Marcy,  28  N. 
J.  Eq.  59;  O'Rourke  v.  Beard,  151  Mass.  9.  See  Keniston  v.  Adams, 
80  Me.  290. 

73  1  Stimson's  Am.  St.  Law,  §  2823(A).  i 

(954)  ■ 


Ch.  20]  TRANSFER  BY  WILL.  §  41fr 

atee  who  is  a  relation  of  the  testator,  while,  in  others,  tho 
issue  of  any  devisee  or  legatee  dying  before  the  testator  takeS' 
the  gift,  unless  a  contrary  intention  appears."^ 

Effect  of  residuary  clause. 


One  result  of  the  theory  that  a  devise  of  land  was  a  present 
conveyance  of  the  land,  and  of  the  rule  that  a  will  did  not 
pass  after-acquired  land,  was  that  a  residuary  devise  of  land, 
however  general  in  its  terms,  was  in  its  nature  specific,  as 
operating  only  on  such  land  as  the  testator  owned  at  the  time 
of  executing  the  will,  and  did  not  devise  to  another  person, 
and  was  equivalent  to  a  devise  of  such  land  by  name  or  spe- 
cific description.  Consequently,  although  a  devisee  of  spe- 
cific land  in  the  will  died  before  testator,  causing  a  "lapse" 
of  the  devise,  the  land  could  not  pass  under  the  residuary 
devise,  but  descended  to  the  heir,'^^  A  different  view  has, 
however,  been  sometimes  taken  as  to  a  devise  which  was  orig- 
inally void,  it  being  held  that  it  would  pass  under  a  residuary 
clause,  on  the  theory  that,  being  in  effect  a  nullity  from  the 
beginning,  it  could  not  be  regarded  as  excepted  from  the  re- 
siduum.'^^ 

The  rule  that  a  residuary  devise  will  not  operate  upon 
land  included  in  a  devise  which  has  lapsed  or  has  otherwise 
failed  has  been  changed  in  Esgland  by  the  provision  of  the 
Wills  Act  that,  unless   a  contrary  intention  appears  from 

-4  1  Stimson's  Am.  St.  Law,  §  2823(B),  (C).  See  Page,  Wills,  §§ 
742,  743;  2  Woerner,  Administration,  §  435. 

75  Williams,  Real  Prop.  (18th  Ed.)  233;  1  Jarman,  Wills,  609; 
Prescott  V.  Preseott,  7  Mete.  (Mass.)  141;  Williams  v.  Neff,  52  Pa. 
St.  326;  Deford  v.  Deford,  36  Md.  168. 

-6  Doe,  Lessee  of  Stewart,  v.  Sheffield,  13  East,  526.  534;  Doe  d. 
Ferguson  v.  Roe,  1  Har.  (Del.)  524,  528.  That  no  such  distinction 
between  void  and  lapsed  devises  exists,  see  1  Jarman,  Wills,  610, 
note;  Lingan  v.  Carroll,  3  Har.  &  McH.  (Md.)  333,  338;  Deford  v. 
Deford,  36  Md.  168,  179. 

(955) 


^  417  REAL  PROPERTY.  [Ch.  20 

the  will,  real  estate  comprised  in  any  void  or  lapsed  devise 
ahall  be  included  in  the  residuary  devise. '^'^  There  is  a  sub- 
stantially similar  provision  in  a  number  of  states  in  this 
country. "^^  The  operation  of  such  a  statute  is,  however, 
much  restricted  by  the  statutes  previously  referred  to,  nam- 
ing persons  to  take  iu  case  of  the  death  of  a  beneficiary. 

Even  in  the  absence  of  a  statute  expressly  making  the 
residuary  devise  operative  upon  land  included  in  a  lapsed 
devise,  the  courts  of  a  number  of  states  have  held  that,  since 
the  passage  of  the  statutes  making  a  will  pass  after-acquired 
realty,  the  reason  for  treating  the  residuary  devise  as  a  spe- 
cific provision  no  longer  exists,  and  that  consequently  it 
covers  all  land  included  in  a  devise  which  has  lapsed  or  be- 
come void.'^^  In  some  states,  however,  a  different  view  has 
been  taken,  it  being  held  that  such  a  statute  as  to  after- 
acquired  property  does  not  cause  land  included  in  a  lapsed 
devise  to  pass  under  the  residuary  clause.^*^ 

§  417.     The  revocation  of  a  will. 

A  will  remains  subject  to  revocation  by  the  testator  at  any 
time.  Such  revocation  may  be  effected  either  by  cancella-  ■ 
tion  or  destruction  of  the  will,  or  by  the  execution  of  another 
testamentary  instrument,  either  expressly  revoking  the  for- 
mer will,  or  making  an  inconsistent  disposition  of  the  prop- 
erty. The  Statute  of  Frauds  provides  that  no  devise  in  writ- 
ing   of  lands,  tenements,   or  hereditaments,   or  any  clause 

T7  7  Wm.  IV.  and  1  Vict.  c.  26,  §  25;  2  Woerner,  Admiaistration, 
§  438. 

78  1  Stimson's  Am.  St.  Law,  §  2822. 

79  Thayer  v.  Wellington,  9  Allen  (Mass.)  283,  296;  Molineaux  v. 
Raynolds,  55  N.  J.  Eq.  187;  Cruikshank  v.  Home  for  Friendless,  113 
N.  Y.  337;  Drew  v.  Wakefield,  54  Me.  291.  See  Johnson  v.  Holi- 
field.  82  Ala.  123. 

80  Massey's  Appeal,  88  Pa.  St.  470;  Rizer  v.  Perry,  58  Md.  112. 
See  2  Woerner,  Administration,  §  438. 

(956) 


Ch.  20]  TRANSFER  BY  WILL.  §   417 

thereof,  shall  be  revocable  otherwise  than  by  some  will  or 
codicil  in  writing,  or  other  writing  declaring  the  same,  signed 
in  the  presence  of  three  or  four  witnesses,  or  by  burning,  can- 
celing, tearing,  or  obliterating  the  previous  will.^^  In  this 
country  the  statutory  provisions  are  usually  of  a  substantial- 
ly similar  character.^^ 

By  cancellation  or  destruction  of  the  instrument. 


In  order  that  a  will  be  revoked  by  cancellation  or  destruc- 
tion, it  is  necessary  that  the  act  be  done  with  the  intention 
of  revoking  the  will,  animo  revocandi,  as  it  is  expressed.^^ 
Consequently,  the  destruction  of  the  will  by  accident^^  or  by 
mistake,  as  when  testator  wrongly  believes  it  to  be  invalid,^^ 
or  during  the  insanity  of  the  testator,^®  does  not  revoke  it. 
On  the  other  hand,  the  mere  intention  to  revoke  is  insufficient 
unless  accompanied  by  some  act  constituting  a  legal  revoca- 
tion.^^ 

The  act  of  destruction,  whether  by  burning,  tearing,  or 

81  29  Car.  IL  c.  3,  §  6.  See  Swinton  v.  Bailey,  4  App.  Cas.  70,  4 
Gray's  Cas.  328. 

82  1  Stimson's  Am.  St.  Law,  §§  2672,  2673. 

83  1  Jarman,  Wills,  118;  1  Woerner,  Administration,  §  48.  The 
statute  frequently  contains  a  provision  to  this  effect.  1  Stimson's 
Am.  St.  Law,  §  2672(C). 

84  Burtenshaw  v.  Gilbert,  Cowp.  52 ;  Burns  v.  Burns,  4  Serg.  & 
R.    (Pa.)   295. 

85  Giles  V.  Warren,  L.  R.  2  Prob.  &  Div.  401,  Chaplin,  Wills,  348. 

86  Rich  V.  Gilkey,  73  Me.  595;  Brunt  v.  Brunt,  L.  R.  3  Prob.  & 
Div.  37,  Chaplin,  Wills,  329;  Lang's  Estate,  65  Cal.  19;  Sprigge  v. 
Sprigge,  L.  R.  1  Prob.  &  Div.  608,  Chaplin,  Wills,  356;  Forbing  v. 
Weber,  99  Ind.  588;  Delafield  v.  Parish,  25  N.  Y.  9. 

8TMundy  v.  Mundy,  15  N.  J.  Eq.  290,  Chaplin,  Wills,  341;  Hoitt 
v.  Hoitt,  63  N.  H.  475;  Kent  v.  Mahaffey,  10  Ohio  St.  204;  Delafield 
V.  Parish,  25  N.  Y.  9.  So,  in  Doe  d.  Reed  v.  Harris,  6  Add.  &  E. 
209,  4  Gray's  Cas.  312,  Chaplin,  Wills,  349,  it  was  decided  that 
throwing  the  will  on  the  fire,  if  it  was  snatched  off  by  another 
person  before  more  than  the  envelope  was  singed,  did  not  consti- 
tute a  revocation. 

(957) 


§   417  REAL  PROPERTY.  [Ch.    20 

other  means,  must,  to  constitute  a  revocation,  be  carried 
through  to  its  end,  and  consequently,  if  testator  desists  from 
his  purpose  after  having  partly  torn  or  destroyed  the  instru- 
ment, there  is  no  revocation,  provided  he  would  have  made 
the  act  more  complete  had  he  not  changed  his  mind.^^  A 
partial  destruction  is  sufficient,  however,  if  the  testator  sup- 
posed that  the  act  was  carried  far  enough  for  the  purpose, 
and  the  preservation  of  the  will  in  its  mutilated  condition 
by  a  third  person  will  not  affect  the  validity  of  the  revo- 
.cation.^^ 

The  cancellation  or  destruction,  animo  revocandl,  of  any 
essential  part  of  the  will,  has  the  effect,  unless  the  statute 
otherwise  provides,^"  of  revoking  the  will,  as  when  the  sig- 
nature is  scratched  or  erased,^ ^  or  so  much  of  the  paper  as 
contains  the  signature  is  torn  off,*^^  or  the  seal  is  destroyed.^^ 
The  cancellation  of  a  particular  phrase  or  name  in  the  will 
may  revoke  that  particular  provision;  without  revoking  the 
will  as  a  whole.  ^^ 

88  Doe  d.  Perkes  v.  Perkes,  3  Barn.  &  Aid.  489,  4  Gray's  Cas.  310, 
Chaplin,  Wills,  334;  Elms  v.  Elms,  1  Swab.  &  Tr.  155,  Chaplin, 
Wills,  335. 

89  Bibb  V.  Thomas,  2  W.  Bl.  1043,  4  Gray's  Cas.  307,  Chaplin,  Wills, 
350;  Sweet  v.  Sweet,  1  Redf.  Surr.  (N.  Y.)  451,  Chaplin,  Wills,  342; 
White  V.  Casten,  46  N.  C.  197,  Chaplin,  Wills,  344;  Lawyer  v.  Smith, 
8  Mich.  411,  Chaplin,  Wills,  369. 

90  Gay  V.  Gay,  60  Iowa,  415. 

91  Semmes  v.  Semmes,  7  Har.  &  J.  (Md.)  388,  Chaplin,  Wills,  353; 
Townshend  v.  Howard,  86  Me.  285;  Evans'  Appeal,  58  Pa.  St  238, 
244;  Olmsted's  Estate,  122  Cal.  224;  In  re  White's  Will,  25  N.  J. 
Eq.  501;  Woodflll  v.  Patton,  76  Ind.  575,  40  Aim.  Rep.  269. 

02  Bell  V.  Fothergill,  L.  R.  2  Prob.  &  Div.  148.  But  see  Webster 
V.  Yorty,  194  111.  408. 

93  This  is  so,  even  though  the  seal  is  not  necessary  to  the  validity 
of  the  will.  Price  v.  Powell,  3  Hurl.  &  N.  341,  4  Gray's  Cas.  323; 
Avery  v.  Pixley,  4  Mass.  460.  See  In  re  White's  Will,  25  N.  J. 
Eq.  501. 

94  Swinton  v.  Bailey,  4  App.  Cas.  70,  4  Gray's  Cas.  328;  Larkins 
V.  Larkins,  3  Bos.  &  P.  16,  4  Gray's  Cas.  309;  Bigelow  v.  Gillott,  123 

(958) 


Ch.    20]  TRANSFER  BY  WILL.  §  417 

In  case  the  will  of  a  decedent,  which  he  is  known  to  have 
made,  cannot  be  found,  it  is  presumed  to  have  been  destroyed 
by  him  with  the  intention  of  revoking  it.^*^  This  presump- 
tion may,  however,  be  rebutted  by  evidence  to  the  contrary, 
as  when  it  is  shown  that  there  was  no  change  in  the  tes- 
tator's desire  to  benefit  the  persons  named  in  the  will,  or 
that  the  will  was  accessible  to  others,  who  might  have  de- 
stroyed it.*^® 

Dependent  relative  revocation. 


"Where  the  act  of  destruction  is  connected  with  the  mak- 
ing of  another  will,  so  as  fairly  to  raise  the  inference  that 
the  testator  meant  the  revocation  of  the  old  to  depend  upon 
the  efficacy  of  the  new  disposition  intended  to  be  substituted, 
such  will  be  the  legal  effect  of  the  transaction;  and  there- 
fore, if  the  will  intended  to  be  substituted  is  inoperative 
from  defect  of  attestation  or  any  other  cause,  the  revocation 
fails  also,  and  the  original  will  remains  in  force."^^  This 
principle  of  "dependent  relative"  revocation,  as  it  is  termed, 
has  been  applied  in  the  case  of  the  cancellation  of  clauses  in 
the  will  by  testator  with  the  intention  of  substituting  other 
clauses,  but  without  re-executing  the  will  after  making  such 
alterations,  and  the  cancellation  has  been  held  to  be  nugatory 

Mass.  102,  4  Gray's  Cas.  344;  In  re  Kirkpatrick's  Will,  22  N.  J. 
Eq.  463;  Miles'  Appeal  from  Probate,  68  Conn.  237;  Gardner  v. 
Gardiner,  65  N.  H.  230.  But  contra,  in  some  states  by  statute, 
see  Law  v.  Law,  83  Ala.  432;  Lovell  v.  Quitman,  88  N.  Y.  377; 
Gay  V.  Gay,  60  Iowa,  416. 

95ldley  V.  Bowen,  11  Wend.  (N.  Y.)  227;  Knapp  v.  Knapp,  10  N. 
Y.  276;  Foster's  Appeal,  87  Pa.  St.  67,  Chaplin,  Wills,  364;  Harris 
V.  Harris,  10  Wash.  555;  In  re  Valentine's  Will,  93  Wis.  46. 

96Schultz  V.  Schultz,  35  N.  Y.  653,  Chaplin,  Wills,  358;  Patten 
V.  Poulton,  1  Swab.  &  Tr.  55,  Chaplin,  Wills,  361;  Harris  v.  Harris, 
10  Wash.  555. 

07  1  Jarman,  Wills,  119.  See,  also,  1  Williams,  Executors  (9th 
Ed.)  126  et  seq.;  Onions  v.  Tyrer,  2  Vern.  742.  4  Gray's  Cas.  356. 

(959) 


§417  KEAL  PROPERTY.  [Ch.  20 

as  a  revocation.^^  The  same  principle  has  been  held  to  ap- 
ply when  the  testator  destroyed  a  will  under  the  mistaken 
impression  that  a  previous  will  would  be  thereby  validated, 
and  with  the  intention  of  setting  up  such  former  disposi- 
tion.^^ The  fact,  however,  that  the  act  of  destruction  is  ac- 
companied by  an  intention  to  make  another  will  in  the  fu- 
ture cannot  prevent  such  act  from  operating  as  a  revoca- 
tion.ioo 

Subsequent  will. 


As  stated  above,  a  will  can,  by  force  of  the  statute,  be  re- 
voked by  a  subsequent  writing  only  when  such  writing  i& 
executed  as  a  will, — that  is,  only  by  a  subsequent  will.^"^ 
Such  revocation  may  result  either  from  the  language  of  the 
later  instrument  revoking  the  earlier  will,  or  the  later  will 
may  make  a  disposition  of  testator's  property,  or  part  there- 
of, inconsistent  with  the  earlier  disposition.^*^ ^  If  the  sec- 
ond will  neither  in  terms  revokes  the  previous  will  nor  is  in- 
consistent therewith,  then  both  are  in  force,  the  later  being 
in  effect  a  codicil  to  the  former  instrument,^^^  and,  if  the 

sswinsor  v.  Pratt,  2  Brod.  &  B.  650,  4  Gray's  Gas.  359;  Wolf 
V.  Bollinger,  62  111.  368;  Doane  v.  Hadlock,  42  Me.  72;  Wilboum 
V.  Shell,  59  Miss.  205;  Gardner  v.  Gardiner,  65  N.  H.  230;  In  re 
Penniman's  Will,  20  Minn.  245  (Gil.  220),  18  Am.  Rep.  368. 

99  Powell  V.  Powell,  L.  R.  1  Prob.  &  Div.  209,  4  Gray's  Gas.  373. 

100  Semmes  v.  Semmes,  7  Har.  &  J.  (Md.)  388,  4  Gray's  Gas.  383; 
Townshend  v.  Howard,  86  Me.  285;  Olmstead's  Estate,  122  Gal.  224; 
Banks  v.  Banks,  65  Mo.  432;  Brown  v.  Thorndike,  15  Pick.  (Mass.> 
388;   1  Woerner,  Administration,  §  48. 

101 1  Stimson's  Am.  St.  Law,  §  2673.  So  it  has  been  held  that 
words  written  upon  another  part  of  the  paper,  to  the  effect  that 
the  will  is  revoked  or  "canceled,"  though  signed  by  the  testator, 
do  not  revoke  the  will,  unless  witnessed  as  required  in  the  case 
of  a  will.  Ladd's  Will,  60  Wis.  187,  4  Gray's  Gas.  347.  But  see 
Warner  v.  Warner,  37  Vt.  356,  4  Gray's  Gas.  337;  Evans'  Appeal, 
58  Pa.  St.  238. 

102  1  Jarman,  Wills,  134-139;   Bigelow,  Wills,  136. 

103  1  Jarman,  Wills,  139;  Wetmore  v.  Parker,  52  N.  Y.  450;  Gor- 
(960) 


Ch.  20J  TRANSFER  BY   WILL.  ^   417 

later  will  is  only  partially  inconsistent  with  the  earlier  will, 
the  latter  remains  in  force  in  other  respect s.^*^"*  The  subse- 
quent will  ma}'  contain  no  provision  other  than  that  revoking 
the  earlier  will/""'^  and  it  has  the  effect  of  revocation  if  it  so 
provides,  although  the  attempted  disposition  therein  of  the 
testator's  property  is  for  some  reason  invalid.^ "^^ 

The  contents  of  a  lost  will  may  be  shown  for  the  purpose 
of  establishing  a  revocation  of  a  previous  will.^""^  But  the 
mere  fact  of  the  execution  of  a  later  will,  without  evidence  as 
to  its  contents,  is  not  sufficient  to  show  a  revocation,^ "^^ 

A  revocation  by  a  will  or  codicil  of  a  previous  disposition 
of  property  is  invalid  if  expressly  made  upon  an  assumption 
of  fact  which  turns  out  to  be  mistaken,^^^  But  the  fact  that 
the  revocation  was  the  result  of  mistake  cannot  be  shown  by 
evidence  extrinsic  to  the  will/^^  and  it  has  been  held  that 

don  V.  Whitlock,  92  Va.  723;  Smith  v.  McCliesney,  15  N.  J.  Eq. 
359. 

104  Freeman  v.  Freeman,  5  De  Gex,  M.  &  G.  704,  4  Gray's  Cas. 
297;  Lemage  v.  Goodban,  L.  R.  1  Prob.  &  Div.  57,  4  Gray's  Cas. 
302;  Price  v.  Maxwell,  28  Pa.  St.  23;  Kelly  v.  Richardson,  100  Ala. 
584;  In  re  De  Laveaga's  Estate,  119  Cal.  651;  Wetmore  v.  Parker,  52 
N.  Y.  450. 

100  Bayley  v.  Bailey,  5  Gush.  (Mass.)  245;  Barksdale  v.  Hopkins, 
23  Ga.  332. 

I'lu  Ex  parte  Ilchester,  7  Ves.  348,  373;  Hairston  v.  Hairston,  30 
Miss.  276;  Morey  v.  Sohier,  63  N.  H.  507;  Burns  v.  Travis,  117 
Ind.  44. 

107  Caeman  v.  Van  Harke,  33  Kan.  333;  Wallis  v.  Wallis,  114 
Mass.  510. 

losHitchins  v.  Basset,  2  Salk.  592,  4  Gray's  Cas.  295;  In  re  Stern- 
berg's Estate,  94  Iowa,  305. 

109  Campbell  v.  French,  3  Ves.  321,  4  Gray's  Cas.  358,  where  a 
revocation  of  a  provision  in  favor  of  certain  persons,  "they  being 
all  dead,"  was  held  to  be  inoperative,  they  being  alive.  See,  also. 
Doe  d.  Evans  v.  Evans,  10  Adol.  &  E.  228. 

iioGifford  v.  Dyer,  2  R.  I.  99,  4  Gray's  Cas.  386;  Skipwith  v. 
Cabell's  Ex'r,  19  Grat.  (Va.)  758.  4  Gray's  Cas.  387;  Dunham  v. 
Averill,  45  Conn.  61;   Hayes  v.  Hayes,  45  N.  J.  Eq.  461. 

(961) 
Real  Prop.— 61 


§   417  REAL  PROPERTY.  lCh.20 

even  a  mistake  apparent  in  the  will  does  not  defeat  the  rev- 
ocation if  it  is  not  based  on  information  received  from  oth- 
ers, but  the  matter  is  within  the  personal  knowledge  of  tes- 
tator.'^ ^  A  revocation,  moreover,  which  is  stated  to  be  based 
upon  certain  advice  given  testator,  has  been  supported, 
though  the  advice  was  mistaken,  since  it  was  the  advice  on 
which  testator  acted,  and  as  to  that  there  was  no  mistake.-^^^ 

Marriage  or  birth  of  issue. 


Apart  from  statute,  the  will  of  a  man  is  not  revoked  by 
his  marriage  alone.^^^  In  some  states,  however,  though 
there  is  no  express  statutory  change  of  this  rule,  it  has  been 
decided  that  the  statutes  changing  the  common-law  rights  of 
a  married  woman  as  regards  her  interest  in  the  husband's 
estate  on  his  death  without  issue  have,  by  implication,  made 
a  change  in  the  rule,  and  that  the  husband's  marriage  does 
revoke  the  will.^^^ 

At  common  law,  the  marriage  of  a  woman  revokes  her 
will,  for  the  reason,  it  is  said,  that,  since  the  marriage  de- 
stroys her  right  to  make  or  revoke  a  will,  if  marriage  did  not 
in  itself  cause  a  revocation,  the  will  would  stand  as  a  per- 
manent disposition  of  her  property,'/^  This  rule  is  a  posi- 
tive rule  of  law,  and  evidence  is  not  admissible  to  show  a 

111  Mendinhall's  Appeal,  124  Pa.  St.  387. 

11-' Attorney  General  v.  Lloyd,  1  Ves.  Sr.  32,  4  Gray's  Gas.  357; 
1  Jarman,  Wills,  147;  Newton  v.  Newton,  12  Ir.  Ch.  118,  4  Gray's 
Gas.  437;  Skipwith  v.  Cabell's  Ex'r,  19  Grat.  (Va.)  758,  4  Gray's 
Cas.  387. 

113  1  Jarman,  Wills,   111. 

ii-t  Brown  v.  Scherrer,  5  Colo.  App.  255,  21  Colo.  481;  Tyler  v. 
Tyler,  19  111.  151;  American  Board  of  Com'rs  for  Foreign  Missions  v. 
Nelson,  72  111.  564;  Morgan  v.  Ireland,  1  Idaho,  7811.  Contra,  Hulett  v. 
Carey,  66  Minn.  327;  Hoitt  v.  Hoitt,  63  N.  H.  475j  Goodsell's  Ap- 
peal, 55  Conn.  171. 

ii-'l  Jarman,  Wills,  110;  Hodsden  v.  Lloyd,  2  Brown  Ch.  534; 
Garrett  v.  Dabney,  27  Miss.  335.  So  by  statute  in  a  number  of 
states.     1    Stimson's  Am.   St.  Law,   §   2676(A). 


Ch.  20]  TRANSFER  BY  WILL.  §   417 

contrary  inteution  on  the  part  of  testatrix.^ ^"  In  several 
states  it  has  been  held  that  this  rule  does  not  apply  when  the 
common-law  restriction  upon  the  right  of  a  married  woman 
to  make  a  will  no  longer  exists.^  ^^  An  express  statutory 
jDrovision  in  accordance  with  the  common-law  rule  has,  how- 
ever, been  held  not  to  be  impliedly  repealed  by  a  statute  giv- 
ing testamentary  capacity  to  married  women  ;^'^  and  the 
common-law  rule  has  been  regarded  as  confirmed  by  a  provi- 
sion, in  the  statute  regarding  the  revocation  of  wills,  that 
nothing  therein  contained  shall  prevent  the  revocation  im- 
plied by  law  from  subsequent  changes  in  the  condition  or  cir- 
cumstances of  the  testator.  ^^•' 

By  the  common-law  rule,  generally  recognized  as  in  force 
in  this  country,  in  the  absence  of  a  statutory  change,  the 
marriage  of  a  man,  if  followed  by  the  birth  of  a  child,  re- 
vokes his  will  previously  made.^^"  This  rule  is  based,  it  is 
said,  upon  a  tacit  condition,  annexed  to  the  will,  that,  in 
case  of  such  a  total  change  in  testator's  circumstances,  the 
will  shall  be  void,^"^  and  consequently  evidence  of  a  contrary 
intention  on  the  ])art  of  the  testator  is,  by  the  weightiest  de- 

ii«Nutt  V.  Norton,  142  Mass.  242;  Hoitt  v.  Hoitt,  63  N.  H.  498. 

11- Ward's  Will,  70  Wis.  251;  In  re  Emery,  81  Me.  275,  Chaplin, 
Wills,  313;  Fellows  v.  Allen,  60  N.  H.  439,  49  Am.  Rep.  329;  Webb 
V.  Jones,  36  N.  J.  Eq.  163;  Noyes  v.  Southworth,  55  Mich.  173,  54 
Am.  Rep.  359;  Morton  v.  Onion,  45  Vt.  145;  In  re  Tuller's  Will,  79 
III.  99.     Contra,  Swan  v.  Hammond,  138  Mass.  45. 

118  Brown  v.  Clark,  77  N.  Y.  369,  Chaplin,  Wills,  315;  In  re  Kauf- 
man's Will,  131  N.  Y.  620,  Chaplin,  Wills,  317. 

ii»  Shorten  v.  Judd,  60  Kan.  73;   Swan  v.  Hammond,  138  Mass.  45. 

120  1  Jarman,  Wills,  110;  Christopher  v.  Christopher,  2  Dickens, 
445.  4  Gray's  Cas.  390. 

In  New  Hampshire  it  has  been  held  that  the  marriage  and  birth 
of  issue  no  longer  effect  a  revocation,  in  view  of  the  statute  which 
gives  to  a  widow  and  child  not  provided  for  in  the  will  the  same 
share  as  if  decedent  had  died  intestate.  Hoitt  v.  Hoitt,  63  N.  H. 
498. 

i-'i  Kenebel  v.  Scrafton,  2  East,  530,  4  Giay's  Cas.  394. 

(963) 


§   417  REAL  PROPERTY.  [Ch.  20 

cisions,  not  admissible.^  ^^  The  rule  that  marriage  and  birth 
of  issue  revokes  the  will  does  not,  however,  apply  if  the  fu- 
ture wife  and  the  issue  of  the  marriage  are  provided  for  by 
the  will,^^^  and  occasionally,  by  statute,  a  provision  for  the 
issue  alone  is  sufficient  to. prevent  its  application.^ ^^^ 

The  birth  of  a  child  does  not,  apart  from  statute,  affect  a 
man's  previous  disposition  of  his  property  by  will.^^^ 

There  are  in  most  of  the  states  express  statutory  provi- 
sions as  to  the  effect  of  marriage  or  birth  of  issue  in  revoking 
a  will.  In  some  states  a  will  is  revoked  by  marriage  and 
birth  of  issue,  unless  provision  for  such  issue  is  made  in  the 
will  or  by  settlement,  or  they  are  in  such  way  mentioned  in 
the  will  as  to  show  an  intention  not  to  provide  for  them.  In 
several  states  the  marriage  alone  of  the  testator  revokes  the 
will,  subject,  in  some  states,  to  the  condition  that  he  leaves  a 
widow  for  whom  he  does  not  provide  by  marriage  settle- 
ment or  in  the  will,  or  does  not  so  mention  her  in  the  will 
as  to  show  an  intention  not  to  provide  for  her.  And  in  some 
states  a  will  made  before  the  birth  of  issue,  which  makes  no 
mention  of  possible  issue,  is  in  effect  revoked  if  the  testator 
leave  a  child.^^® 

Alienation  of  land. 


The  conveyance  by  the  testator  of  land,  which  would  oth- 

122  Marston  v.  Roe,  8  Adol.  &  E.  14,  4  Gray's  Gas.  403;  Chicago, 
B.  &  Q.  R.  Co.  V.  Wasserman  (G.  C.)  22  Fed.  872;  Baldwin  v. 
Spriggs,  65  Md.  373.  See  Nutt  v.  Norton,  142  Mass.  242;  Hoitt 
V.  Hoitt,  63  N.  H.  498.     Contra,  Wheeler  v.  Wheeler,  1  R.  I.  364. 

123  Kenebel  v.  Scrafton,  2  East,  530,  4  Gray's  Gas.  394;  Marston 
V.  Roe,  8  Adol.  &  E.  14,  4  Gray's  Gas.  403;  Warner  v.  Beach,  4 
Gray  (Mass.)   162;  Baldwin  v.  Spriggs,  65  Md.  373. 

124  1  Stimson's  Am.  St.  Law,  §  2676(C). 

125  Doe  d.  White  v.  Barford,  4  Maule  &  S.  10,  4  Gray's  Gas.  402; 
Brush  V.  Wilkins,  4  Johns.  Ch.  (N.  Y.)  506;  Goodsell's  Appeal  from 
Probate,  55  Conn.  171.  Contra,  McGullum  v.  McKenzie,  26  Iowa, 
510. 

126  1  Stimson's  Am.  St.  Law,  §  2676. 
(964) 


Ch.  20]  TRANSFER  BY  WILL.  §  417 

erwise  pass  under  a  will  previously  made,  necessarily  with- 
draws such  land  from  the  operation  of  the  will.^^'^  When 
there  is  merely  a  contract  to  convey,  the  vendor  is,  as  before 
stated,^"*  a  mere  trustee  for  the  purchaser,  and  the  legal  title 
alone  passes  under  his  previous  devise  of  the  land,  the  right 
to  the  purchase  money  passing,  in  the  absence  of  statute, 
to  the  personal  representative.^ ^^  In  some  states,  however, 
the  statute  provides  that,  on  the  death  of  the  vendor  of  land, 
the  unpaid  purchase  money  shall  pass  under  the  devise  of 
the  land,  in  place,  as  it  were,  of  the  land.^^° 

So  far  as  the  common-law  rule  that  the  will  operates  only 
on  land  ovmed  by  testator  at  the  time  of  its  execution  may 
still  remain  in  force  in  any  jurisdiction,  the  reconveyance  to 
testator  of  land  conveyed  by  him  after  the  making  of  the 
will  cannot  render  the  will  operative  as  to  such  land.^^^ 
And,  apart  from  any  change  in  the  law  brought  about  by 
the  modern  statutes,  a  conveyance  by  the  testator  after  the 
making  of  his  will,  if  it  transfers  the  legal  title  in  fee  sim- 
ple, is  effective  as  a  revocation,  even  though,  by  the  same  in- 
strument, another  estate  is  created  in  favor  of  himself,  as 
in  the  case  of  a  declaration  of  trust  in  his  own  favor.^^^  Un- 
der the  statutory  rule  which  now  prevails  in  England,  and 
in  most,  if  not  all,  of  the  states,  that  the  will  operates  on  such 
land  as  the  testator  has  at  the  time  of  his  death,  a  convey- 
ance by  testator  after  making  his  will  cannot  prevent  the 
operation  of  the  will  upon  the  land  conveyed,  if  it  is  recon- 

127  1  Jarman,  Wills,  129. 

128  Ante,  §  110. 

129  1  Jarman,  Wills,  129,  Bender  v.  Luckenbach,  162  Pa.  St.  18; 
Skinner  v.  Newberry,  51  111.  203;  Bruck  v.  Tucker,  32  Cal.  426.  See 
ante,  §  112. 

130  1  Woerner,  Administration,  §  53. 
1311  Jarman,  Wills    (4th  Ed.)    147. 

132  Cave  V.  Holford,  3  Ves.  650;  Brydges  v.  Chandos,  2  Ves.  Jr. 
417;  Walton  v.  Walton,  7  Johns.  Ch.  (N.  Y.)  258;  Jones  v.  Hart- 
ley, 2  Whart.  (Pa.)  103. 

(965) 


§  418  REAL  PROPERTY.  [Ch.  20 

veyed  or  title  is  in  any  way  revested  in  the  testator  before 
his  death;  and  in  many  jurisdictions  there  is  an  express  pro- 
vision that  a  conveyance  shall  not  prevent  the  operation  of 
the  will  with  respect  to  such  an  estate  as  testator  has  at  the 
time  of  his  death,  unless,  in  some  states,  the  intention  to  re- 
voke is  expressed  in  the  conveyance.-^  ^^ 

A  conveyance  by  a  testator  was  held  in  England,  as  the 
law  formerly  stood,  to  effect  a  revocation,  although  the  con- 
veyance was  void,  either  for  want  of  capacity  in  the  grantee, 
or  for  want  of  the  proper  formalities.^^'*  This  rule  is  no 
longer  in  force  in  England,  on  the  theory,  it  is  said,  that,  as 
a  valid  conveyance  no  longer  effects  a  revocation  if  the  title 
becomes  revested  in  testator,  one  which  is  invalid  can  have 
no  greater  effect. ^^^  In  this  country  there  seems  to  be  no 
explicit  decision  that  an  invalid  conveyance  could  in  any 
case  constitute  revocation,  though  there  are  dicta  to  such 
an  effect,^  ^®  and  a  conveyance  which  is  voidable  because  pro- 
cured by  fraud  has  been  here  held  not  to  cause  a  revoca- 
tion.^^' 

§  418.     Children  or  issue  omitted  from  will. 

In  most  states  there  is  a  statutory  provision  that,  if  a 
child  living  or  leaving  issue  at  the  testator's  death  was  born 
after  the  execution  of  the  will,  such  child  or  issue  shall  take 
the  share  to  which  he  or  they  would  have  been  entitled  if  tes- 

13S  Wills  Act,  7  Wm.  IV.  and  1  Vict.  c.  26.  §  23;  1  Stimson's 
Am.  St.  Law,  §  2810. 

134  1  Jarman,  Wills  (4tli  Ed.)  165;  Mountague  v.  Jeoffereys, 
Moore,  429,  4  Gray's  Gas.  682;  Hick  v.  Mors,  Amb.  215,  4  Gray's 
Gas.  685. 

135  1  Jarman,  Wills,  133. 

136  See  Walton  v.  Walton,  7  Johns.  Gh.  (N.  Y.)  258;  Graham  v. 
Burch,  47  Minn.  171;  Bigelow,  Wills,  134.  But  see  Bennett  v. 
Gaddis,  79  Ind.  347. 

137  Graham  v.  Burch,  47  Minn.  171.  Contra  in  England.  Simp- 
son V.  Walker,  5  Sim.  1.     See  1  Redfield,  Wills  (4th  Ed.)  344. 

(066) 


Ch.   20]  TRANSFER  BY  WILL.  !J   419 

tator  had  died  intestate.  In  a  nnmbcr  of  the  states^  such  a 
provision  applies  only  in  case  the  chihl  or  issnc  were  not 
provided  for  otherwise  hy  testator,  or  were  not  intentionally 
omitted. ^^^  In  a  number  of  states,  statutes  of  this  charac- 
ter, entitling  an  omitted  child  to  the  share  which  he  would 
have  had  if  deceased  had  died  intestate,  are  not  restricted  in 
their  application  to  children  born  after  the  execution  of  the 
will,  but  apply  in  the  case  of  any  child,  usually  whether 
that  child  was  omitted  intentionally  or  unintentionally.^'"' 

§  419.     Revival  of  will. 

In  the  case  of  a  will  which  is  revoked  by  an  express  state- 
ment to  that  effect  in  a  subsequent  will,  or  by  inconsistent 
provisions  therein,  the  question  has  frequently  arisen  as  to 
the  effect  of  a  subsequent  revocation  of  the  revoking  will. 
In  England  it  was  held  by  the  common-law  courts  that  tlie 
effect  was  to  "revive"  or  put  in  force  again  the  provisions  of 
the  earlier  will,  if  this  had  not  been  destroyed,  on  the  theory 
that,  as  the  second  will  had  no  operation  until  testator's 
death,  if  it  was  revoked  it  could  not  operate  as  a  revocation 
of  the  earlier  will.^^*^  The  ecclesiastical  courts,  however, 
held  that  the  question  of  revival  was  one  of  intention  purely, 
to  be  decided  according  to  the  facts  and  circumstances  of 
the  particular  case.^'^^  This  question  is  there  set  at  rest 
by  the  Wills  Act,^^"  which  provides  ''that  no  will  or  codicil, 
or  any  part  thereof,  which  shall  be  in  any  manner  revoked, 
shall  be  revived  otherwise  than  by  the  re-execution  thereof, 

138  1  Stimson's  Am.  St.  Law,  §  2843. 

139  1  Stimson's  Am.  St.  Law,  §  2842.  See  Page,  Wills,  §  291 ; 
1  Woerner,  Administration,  §  55. 

i*'>  Goodright  v.  Glazier,  4  Burrows,  2512,  4  Gray's  Gas.  434;  1 
Jarman,  Wills  (4th  Ed.)  136. 

141  Moore  v.  Moore.  1  Phillim.  357;  Usticke  v.  Bawden,  2  Addams, 
116. 

142  7  Wm.  IV.  and  1  Vict.  c.  26.  §  22. 

(967) 


^   419  REAL  PROPERTY.  [Ch.  20 

or  bj  a  codicil  executed  in  manner  hereinbefore  required, 
and  showing  an  intention  to  revive  the  same,"  it  being  held 
thereunder  that  the  cancellation  or  destruction  of  the  revok- 
ing will  cannot  revive  the  previous  will.-^^^ 

In  this  country  the  view  of  the  English  ecclesiastical 
courts,  that  the  question  of  revival  is  one  purely  of  intention, 
has  occasionally  been  adopted,^  ^^  with  the  presumption,  it 
seems,  in  the  absence  of  evidence,  against  a  revival  in  such 
a  case.^'*^  In  a  few  jurisdictions,  however,  the  view  is  taken 
that  the  revocation  of  the  subsequent  will  ipso  facto  revives 
the  earlier  one;^^®  and  in  some  this  view  is  applied  to  cases 
in  which  the  second  will  revoked  the  first  will  merely  by 
reason  of  inconsistency  therewith,  and  not  by  an  express 
statement  to  that  effect.^'*''^  In  one  state,  at  least,  the  rule 
which  prevails  by  statute  in  England  has  been  adopted,  in 
the  absence  of  any  local  statute  on  the  subject.^^* 

There  are,  in  many  states,  statutory  provisions  on  this 
subject,  it  being  sometimes  provided,  as  in  England,  that  a 
will  once  revoked  can  be  revived  only  by  a  re-execution 
thereof,  or  by  a  codicil  duly  executed,  while  in  others  the 
canceling,  destruction,  or  revocation  of  the  second  will  does 
not  revive  the  first  will,  unless  such  intent  appear  in  the 

143  1  Jarman,  Wills,  §  126;  1  Williams,  Executors  (9th  Ed.)  163. 

1*4  Pickens  v.  Davis,  134  Mass.  252,  4  Gray's  Gas.  444;  In  re 
Gould's  Will,  72  Vt.  316;  McClure  v.  McClure,  86  Tenn.  173.  See 
Bohanon  v.  Walcot,  1  How.  (Miss.)  336;  Randall  v.  Beatty,  31  N. 
J.  Eq.  643. 

145  Pickens  v.  Davis,  134  Mass.  252,  4  Gray's  Gas.  444.  See  15 
Harv.  Law  Rev.  142. 

146  Taylor  v.  Taylor,  2  Nott  &  McG.  (S.  C.)  482;  Peck's  Appeal 
from  Probate,  50  Conn.  562;  Flintham  v.  Bradford,  10  Pa.  St.  82. 

147  Scott  V.  Fink,  45  Mich.  241;  Cheever  v.  North,  106  Mich.  390; 
Colvin  V.  Warford,  20  Md.  357.  See  Hawes  v.  Nicholas,  72  Tex. 
481 ;   Peck's  Appeal  from  Probate,  50  Conn.  562. 

148  Harwell  v.  Lively,  30  Ga.  315. 

(i»i;s) 


Ch.   20]  TRANSFER  BY  WILL.  j;   420 

terms  of  the  revocation,   or  the  first  will  be  duly  repub- 
lished.i4» 

§  420.     Republication. 

A  will  may  be  republished  so  as  to  give  the  words  of  the 
will  the  same  effect  as  if  the  will  had  been  originally  exe- 
cuted at  the  time  of  such  republication, — that  is,  so  as  to 
make  it  "speak"  as  of  that  time.^^*^  Under  the  law  as  it 
formerly  existed  in  England,  restricting  the  operation  of  a 
devise  of  lands  to  such  lands  as  were  owned  by  the  testator 
at  the  time  of  execution  of  the  will,  and  in  those  states  in 
this  country  where  the  same  rule  still  prevails,  the  effect  of 
a  republication  is  important,  as  it  brings  lands  acquired  be- 
tween the  date  of  execution  and  of  republication  within  the 
operation  of  a  general  devise.^  ^^  But  since  the  general 
change  of  the  law  in  this  respect,  the  doctrine  of  republica- 
tion has  lost  much  of  its  importance,  and  it  calls  for  consid- 
eration now  chiefly  in  connection  with  the  possibility  of  giv- 
ing effect  to  a  will  originally  invalid,  or  which  has  been  re- 
voked.^ ^^ 

The  republication  may  consist  of  a  re-execution  of  the  in- 
strument with  the  same  formalities  as  are  necessary  in  the 
case  of  an  absolutely  new  will.  Accordingly,  while,  previ- 
ous to  the  Statute  of  Frauds,  it  might  be  by  means  of  an  oral 

149  1  Stimson's  Am.  St.  Law,  §§  2678,  2679. 

The  destruction  of  a  codicil  reviving  a  former  revoked  will  has 
been  decided  not  to  have  the  effect  of  rendering  the  revival  inop- 
erative, if  there  was  no  intention  that  it  should  have  that  effect. 
James  v.  Shrimpton,  1  Prob.  Div.  431,  4  Gray's  Cas.  443. 

150  1  Jarman,  Wills,  159;  Williams,  Executors   (9th  Ed.)   170. 

151  Beckford  v.  Parnecott,  Cro.  Eliz.  493,  4  Gray's  Cas.  419;  Barnes 
V.  Crow,  4  Brown  Ch.  2,  4  Gray's  Cas.  421. 

152  See  Burge  v.  Hamilton,  72  Ga.  568;  Brown  v.  Riggin,  94  111. 
560;  Walton's  Estate,  194  Pa.  St.  528;  McCurdy  v.  Neall,  42  N.  J. 
Eq.  333;   Skinner  v.  American  Bible  Soc,  92  Wis.  209. 

(969) 


§  420  REAL  PROPERTY.  |Cll.    20 

declaration  even  in  the  case  of  land,^^^  since  that  time  sign- 
ing and  attestation  are  necessary.^  ^"*  The  making  and  exe- 
cution of  a  codicil  to  a  will  has  likewise  the  effect,  in  the  ah- 
sence  of  any  appearance  of  a  contrary  intention,  of  a  repub- 
lication of  the  will,  and  it  is  immaterial  wdiether  the  codicil 
expressly  so  provides,  or  whether  it  is  actually  annexed  to 
the  will.^^^  In  the  absence  of  an  expression  of  a  contrary 
intention,  the  republication  of  a  will,  whether  by  re-execu- 
tion, or  by  the  making  of  a  codicil,  is  of  the  will  as  changed 
by  any  pre-existing  codicils,  they  being  in  effect  a  part  of 
the  will.^^*^  The  mere  fact  that  the  will  is  referred  to  by  its 
original  date  does  not  take  the  case  out  of  the  rule.^^' 

153  Beckford  v.  Parnecott,  Cro.  Eliz.  493.  4  Gray's  Gas.  419. 

154  Jackson  v.  Potter,  9  Johns.  (N.  Y.)  312;  Love  v.  Johnston,  34 
N.  C.  355,  1  Woerner,  Administration,  §  56. 

155  1  Williams,  Executors  (9th  Ed.)  164;  Barnes  v.  Crow,  4  Brown 
Ch.  2,  4  Gray's  Gas.  421;  Van  Alstyne  v.  Van  Alstyne,  28  N.  Y.  375; 
In  re  Murfield's  Will,  74  Iowa,  479;  Hobart  v.  Hobart,  154  111.  610; 
Pope  V.  Pope,  95  Ga.  87;  McCurdy  v.  Neall,  42  N.  J.  Eq.  333. 

156  1  Williams,  Executors  (9th  Ed.)  171;  Crosbie  v.  MacDoual,  4 
Ves.  610,  4  Gray's  Gas.  426. 

157  Green  v.  Tribe,  9  Ch.  Div.  231,  4  Gray's  Gas.  428. 

(970) 


CHAPTER  XXI. 

DEDICATION. 

§  421.  The  nature  of  dedication. 

422.  Mode  of  dedication. 

423.  Acceptance. 

424.  Effect  of  dedication. 

The  dedication  of  land  for  public  use  involves  a  declaration 
by  the  owner,  by  either  word  or  act,  of  an  intention  that  the 
land  shall  be  thereafter  used  by  the  public,  and  to  that  extent 
it  divests  the  rights  of  the  owner  of  the  land.  By  statute,  oc- 
casionally, a  dedication  made  in  a  particular  manner  vests  in 
the  public,  not  a  right  of  user  only,  but  the  ownership  of  the 
land. 

The  dedication  must  usually  be  accepted  in  order  to  impose 
any  liability  upon  the  municipality  as  the  representative  of 
the  public,  and,  by  some  decisions,  in  order  to  render  the  dedi- 
cation irrevocable.  Such  an  acceptance  will,  in  some  cases,  be 
presumed  from  user  by  the  public. 

§  421.     The  nature  of  dedication. 

A  highway  may  be  created  by  the  dedication  of  land  for 
highway  purposes  by  the  owner  thereof,  this  being  in  eilect 
a  declaration,  by  word  or  act,  of  his  intention  that  the  land 
shall  be  used  by  the  public  for  highway  purposes.^  Land 
may  likewise  be  dedicated  for  nse  as  a  park,  common,  or 
square.^     It  has  also  been  decided  in  this  conntry  that  land 

1  Angell,  Highways,  §  132  et  seq.;  Elliott,  Roads  &  S.  c.  5. 

2  Baker  v.  Johnston,  21  Mich.  319;  City  of  Cincinnati  v.  White's 
Lessee,  6  Pet.  (U.  S.)  431,  4  Gray's  Cas.  799;  Abbott  v.  Inhabitants 
of  Cottage   City,   143   Mass.   521,   58  Am.   Rep.   143;    Com.   v.   Rush, 

(971) 


§   421  REAL  PROPERTY.  Ch.    21 

may  be  dedicated  for  use  by  the  public  as  a  wharf  or  landing 
place,^  as  a  cemetery/  or  for  school  purposes.^ 

In  some  jurisdictions  in  this  country  the  common-law 
theory  of  dedication  has  been  greatly  extended  by  decisions 
that  land  may  be  dedicated,  not  only  for  use  by  the  public, 
but  for  use  by  a  small  portion  of  the  public  belonging  to  a 
particular  class,  this  being  presumably  due  to  a  desire  to  up- 
hold gifts  which  otherwise  would  fail  for  want  of  a  sufficient 
conveyance.  Thus,  gifts  for  charitable  and  religious  pur- 
poses, though  merely  oral,  have  been  supported  on  the  theory 
of  dedication.^ 

14  Pa.  St.  186;  State  v.  Trask,  6  Vt.  355,  27  Am.  Dec.  554;  Rhodes 
V.  Town  of  Brightwood,  145  Ind.  21. 

3  City  of  Napa  v.  Rowland,  87  Cal.  84;  Village  of  Mankato  v. 
Willard,  13  Minn.  13  (Gil.  1),  97  Am.  Dec.  208;  Portland  &  W.  V. 
R.  Co.  V.  City  of  Portland,  14  Or.  188,  58  Am.  Rep.  299;  Penny 
Pot  Landing  v.  City  of  Philadelphia,  16  Pa.  St.  79;  City  of  Pitts- 
burg V.  Epping-Carpenter  Co.,  194  Pa.  St.  318;  Gardiner  v.  Tisdale, 
2  Wis.  153,  60  Am.  Dec.  407.  Contra,  Pearsall  v.  Post,  20  Wend. 
(N.  Y.)  Ill;  Post  V.  Pearsall,  22  Wend.  (N.  Y.)  425;  Thomas  v. 
Fiord,  63  Md.  346,  52  Am.  Rep.  513;  Horn  v.  People,  26  Mich.  221; 
O'Neill  V.  Annett,  27  N.  J.  Law,  290,  72  Am.  Dec.  364. 

4  Davidson  v.  Reed,  111  111.  167,  53  Am.  Rep.  613;  Hunter  v.  Trus- 
tees of  Sandy  Hill,  6  Hill  (N.  Y.)  407;  Hagaman  v.  Dittmar,  24 
Kan.  42;  Pierce  v.  Spafford,  53  Vt.  394;  Mowry  v.  City  of  Prov- 
idence, 10  R.  L  52. 

5  Carpenteria  School  Dist.  v.  Heath,  56  Cal.  478;  Chapman  v. 
Floyd,  68  Ga.  455;  Klinkener  v.  School  Directors  of  McKeesport, 
11  Pa.  St.  444;  Board  of  Education  of  Incorporated  Village  of  Van 
Wert  V.  Edson,  18  Ohio  St.  221;  Board  of  Regents  for  Normal 
School  Dist.  No.  3  v.  Painter,  102  Mo.  464. 

GBeatty  v.  Kurtz,  2  Pet.  (U.  S.)  566.  3  Gray's  Cas.  794;  City  of 
Hannibal  v.  Draper,  15  Mo.  634;  Atkinson  v.  Bell,  18  Tex.  474; 
Williams  v.  First  Presbyterian  Soc.  in  Cincinnati,  1  Ohio  St.  478. 
Compare  Home  for  Care  of  the  Inebriate  v.  City  &  County  of  San 
Francisco,  119  Cal.  534;  Trustees  of  Methodist  Episcopal  Church  of 
Hoboken  v.  City  of  Hoboken,  33  N.  J.  Law,  13,  97  Am.  Dec.  696. 

But  the  courts  have  refused  to  support  a  dedication  for  railroad 
purposes  in  favor  of  a  private  corporation.     Lake  Erie  &  W.   R. 

(972) 


Ch.    21]  DEDICATION.  §   422 

A  dedication  may  be  made  subject  to  certain  reservations 
or  restrictions  upon  the  freedom  of  use  of  the  land  by  the 
public.  Thus,  a  highway  may  be  dedicated,  to  be  used  only 
at  certain  seasons/  or  subject  to  a  right  in  the  dedicator  or 
in  others  to  use  the  land  for  certain  purposes,  or  at  certain 
times.^  And  the  dedication  of  a  highway  may  be,  not  for 
general  highway  purposes,  but  for  use  by  pedestrians  only, 
or  for  a  certain  class  of  vehicles.^ 

§  422.     Mode  of  dedication. 

A  dedication  need  not  be  by  any  formal  act  or  declaration, 
but  it  is  sufficient  if  in  any  way  the  owner  of  the  land  indi- 
cates an  intention  to  devote  the  land  to  the  public  use.^'^ 
The  act  of  dedication  is,  however,  affirmative  in  character, 
and  the  intention  to  dedicate  must  be  clearly  shown.  Conse- 
quently, the  mere  acquiescence  by  the  owner  of  land  in  the 
use  thereof  by  the  public  does  not  of  itself  show  a  dedication.^  ^ 

Co.  V.  Whitham,  155  111.  514,  46  Am.  St.  Rep.  355;  Todd  v.  Pittsburg, 
Ft.  W.  &  C.  R.  Co.,  19  Ohio  St.  514. 

7  Hughes  V.  Bingham,  135  N.  Y.  347. 

8  Mercer  v.  Woodgate,  L.  R.  5  Q.  B.  26,  3  Gray's  Cas.  790;  City 
of  Noblesville  v.  Lake  Erie  &  W.  R.  Co.,  130  Ind.  1;  City  of  Du- 
buque V.  Benson,  23  Iowa,  248;  Ayres  v.  Pennsylvania  R.  Co.,  52 
N.  J.  Law,  405. 

9  Stafford  v.  Coyney,  7  Barn.  &  C.  257;  Trustees  of  Methodist 
Episcopal  Church  of  Hoboken  v.  City  of  Hoboken,  33  N.  J.  Law, 
13,  97  Am.  Dec.  696. 

10  Quinn  v.  Anderson,  70  Cal.  454;  Godfrey  v.  City  of  Alton,  12 
111.  29,  52  Am.  Dec.  476;  Williams  v.  Wiley,  16  Ind.  362;  Hall  v. 
McLeod,  2  Mete.  (Ky.)  98,  74  Am.  Dec.  400;  Wright  v.  Tukey,  3 
Cush.  (Mass.)  290. 

11  Cunningham  v.  Hendricks,  89  Wis.  632;  City  of  Chicago  v. 
Chicago,  R.  I.  &  P.  Ry.  Co.,  152  111.  561;  Steele  v.  Sullivan,  70  Ala. 
589;  Cyr  v.  Madore,  73  Me.  53;  Hayden  v.  Stone,  112  Mass.  346; 
Stacey  v.  Miller,  14  Mo.  478;  Lewis  v.  City  of  Portland,  25  Or.  133, 
42  Am.  St.  Rep.  772;  Weiss  v.  Borough  of  South  Bethlehem,  136 
Pa.  St.  294;  Worthington  v.  Wade,  82  Tex.  26;  Hibberd  v.  Mellville 
(Cal.)  33  Pac.  201;  Irwin  v.  Dixion,  9  How.  (U.  S.)  10;  McKey  v. 
Village  of  Hyde  Park,  134  U.  S.  84. 

(973) 


§   422  REAL  PROPERTY.  [Ch.  21 

But  the  fact  that  the  public  is  allowed  to  use  the  land, 
when  taken  in  connection  with  other  facts,  may  be  sufficient 
to  show  a  dedication.^-  The  fact  that  the  owner  of  the  land 
continues  to  pay  taxes  thereon,^  ^  or  that  he  makes  convey- 
ances of  the  land,^*  may  tend  to  rebut  any  presumption  of 
dedication  otherwise  arising,  and,  in  the  case  of  land  used  as 
a  highway,  the  fact  that  the  owner  erects  bars  and  gates 
thereon  are  strong  evidence  in  rebuttal  of  the  rights  of  the 
public. ^^  But  while  the  intention  to  dedicate  must  be  clear- 
ly shown,  and  the  landowner  himself  may,  according  to 
some  decisions,  testify  as  to  his  intention,^''  he  cannot,  if  his 
acts  are  such  as  to  show  an  intention  to  dedicate,  assert,  aft- 
er the  making  of  expenditures  by  the  municipality  or  in- 
dividuals on  the  strength  of  such  acts,  that  he  had  no  inten- 
tion to  dedicate.^  ^ 

As  a  general  rule,  if  the  owner  of  laud  who  has  laid  it  off 

1^  New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Moye.  39  Miss.  374;  State 
V.  Birmingham,  74  Iowa,  407;  Schwerdtle  v.  Placer  County,  108 
Cal.  589;  Tupper  v.  Huson,  46  Wis.  646;  City  of  Chicago  v.  Chi- 
cago, R.  I.  &  P.  Ry.  Co.,  152  111.  561;  Weiss  v.  Borough  of  South 
Bethlehem,  136  Pa.  St.  294. 

13  Mansur  v.  State,  60  Ind.  357;  City  of  Topeka  v.  Cowee,  48 
Kan.  345;  Case  v.  Favier,  12  Minn.  89  (Gil.  48);  Bauman  v.  Boeck- 
eler,  119  Mo.  189.  But  payment  of  taxes  is  but  slight  evidence 
against  a  dedication.  See  Rhodes  v.  Town  of  Brightwood,  145  Ind. 
21;  Getchell  v.  Benedict,  57  Iowa,  121;  Town  of  San  Leandro  v. 
Le  Breton,  72  Cal.  170;  City  of  Ottawa  v.  Yentzer,  160  111.  509. 

It  Hall  V.  City  of  Baltimore,  56  Md.  187;  Case  v.  Favier,  12  Minn. 
89    (Gil.  48). 

1-;  Jones  V.  Phillips,  59  Ark.  35;  People  v.  Reed,  81  Cal.  70,  15 
Am.  St.  Rep.  22;  Bidinger  v.  Bishop,  76  Ind.  244;  State  v.  Green, 
41  Iowa,  693;  Com.  v.  Inhabitants  of  Newbury,  2  Pick.  (Mass.)  51. 

I'i  Bidinger  v.  Bishop,  76  Ind.  244;  Goodfellow  v.  Riggs,  88  Iowa. 
540;  City  of  Chicago  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  152  111.  561; 
Helm  V.  McClure,  107  Cal.  199.  Contra,  Perkins  v.  Fielding,  119 
Mo.  149. 

iTBigelow,  Estoppel  (5th  Ed.)  035;  Angell,  Highways,  §  156;  El- 
liott, Roads  &  S.  §§  125,  168. 

(971) 


Ch.    21J  DEDICATION.  g   422 

into  lots,  Avitli  streets  and  allevs  iiitersectiiii;"  the  same,  sells 
his  lots  with  reference  to  such  streets  and  alleys,  or  with 
reference  to  a  plat  on  which  tlicy  ap})ear,  this  constitutes  a 
dedication  to  the  public  of  the  land  covered  by  such  streets 
or  alleys.^  ^  By  some  decisions,  however,  such  a  sale  of  lots 
with  reference  to  a  street  which  has  not  yet  been  opened  is 
not  regarded  as  vesting  any  rights  in  the  public,^''  though 
the  purchasers  of  such  lots  would  no  doubt  acquire  a  right 
of  way  in  the  land  so  referred  to  as  a  highway.^"  A  mere 
description  of  land,  upon  the  conveyance  thereof,  as  bounded 
on  a  certain  street,  as  extended,  or  as  shown  on  a  city  map, 
does  not  involve  a  dedication  of  land  for  such  street.^^ 

The  question  whether  a  dedication  has  been  made  is  usu- 
ally one  of  fact  for  the  jury  under  instructions  as  to  what 
may  constitute  a  dedication,^^ 

Statutory  dedication. 


In  the  statutes  authorizing  the  record  of  a  plat  of  a  sub- 

1"  Irwin  V.  Dixion,  9  How.  (,U.  S.)  10,  31;  Trustees  of  Methodist 
Episcopal  Church  of  Hoboken  v.  City  of  Hoboken,  33  N.  J.  Law,  13, 
97  Am.  Dec.  696;  Meier  v.  Portland  Cable  Ry.  Co.,  16  Or.  500;  City 
of  Baltimore  v.  Frick,  82  Md.  77;  Fossion  v.  Landry,  123  Ind.  136; 
Quicksall  v.  City  of  Philadelphia,  177  Pa.  St.  301;  Bartlett  v.  City 
of  Bangor,  67  Me.  460;  Briel  v.  City  of  Natchez,  48  Miss.  423; 
Elliott,  Roads  &  S.   (2d  Ed.)   §§  117.  118;   Jones,  Easements,  §  430. 

I'J  In  re  Eleventh  Avenue,  81  N.  Y.  436;  Prescott  v.  Edwards,  117 
Cal.  298. 

^"  See  ante.  §  320. 

-1  City  of  Omaha  v.  Hawver,  4£f  Neb.  1;  Sandford  v.  City  of  Cov- 
ington, 12  Ky.  Law  Rep.  450,  14  S.  W.  497;  Hancock  v.  City  of 
Philadelphia,  175  Pa.  St.  124. 

-••-;  Grube  v.  Nichols,  36  111.  92;  Wood  v.  Hurd,  34  N.  J.  Law,  87; 
New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Moye,  39  Miss.  374;  City  of  Hart- 
ford V.  New  York  &  N.  E.  R.  Co.,  59  Conn.  250;  City  of  Elgin  v. 
Beckwith,  119  111.  367;  Adams  v.  Iron  Cliffs  Co.,  78  Mich.  278,  18 
Am.  St.  Rep.  441;  Morse  v.  Zeize.  34  Minn.  35;  McVee  v.  City  of 
Watertown,  92  Hun  (N.  Y.)  306;  Folsom  v.  Town  of  Underbill,  36 
Vt.  580. 

(975) 


§   423  REAL  PROPERTY.  [Ch.  21 

division  of  land  made  by  the  owner  thereof,^^  there  is  usu- 
ally a  provision  that  the  strips  or  pieces  of  land  which  the 
owner,  as  indicated  on  the  plat,  intends  shall  be  used  by  the 
public  for  streets,  parks,  and  the  like,  shal]  be  regarded  as 
dedicated  to  the  public.  These  statutes  usually  contain 
minute  requirements  in  regard  to  the  form  and  authentica- 
tion of  the  plat,  and,  if  these  requirements  are  not  complied 
with,  the  plat  does  not  constitute  a  statutory  dedication, 
though  it  may,  in  connection  with  sales  of  land  with  refer- 
ence thereto,  or  other  acts,  constitute  evidence  of  a  common- 
law  dedication.^* 

§  423.     Acceptance. 

In  order  that  a  dedication,  or,  rather,  an  offer  of  dedica- 
tion, may  be  effective  for  the  purpose  of  imposing  burdens 
and  liabilities  upon  the  public  authorities,  it  is  necessary  that 
it  be  accepted  by  the  public,^^  and,  by  numerous  decisions, 
such  an  acceptance  is  also  necessary  for  the  purpose  of  ren- 
dering the  offer  of  dedication  irrevocable  by  the  dedicator.^® 

23  See  ante,  §  389. 

24  Marsh  v.  Village  of  Fairbury,  163  111.  401;  Ruddiman  v.  Taylor, 
95  Mich.  547;  Campbell  v.  City  of  Kansas,  102  Mo.  326;  Incorpo- 
rated Village  of  Fulton's  Lessee  v.  Mehrenfeld,  8  Ohio  St.  440; 
Pillsbury  v.  Alexander,  40  Neb.  242;  Elliott,  Roads  &  S.  §  114. 

25  City  &  County  of  San  Francisco  v.  Calderwood,  31  Cal.  585, 
91  Am.  Dec.  545;  City  of  Denver  v.  Denver  &  S.  F.  Ry.  Co.,  17  Colo. 
583;  State  v.  Atherton,  16  N.  H.  203;  Rhodes  v.  Town  of  Bright- 
wood,  145  Ind.  21;  Booraem  v.  North  Hudson  County  Ry.  Co.,  39  N. 
J.  Eq.  465;  Downend  v.  Kansas  City,  71  Mo.  App.  529;  Elliott, 
Roads  &  S.   (2d  Ed.)   §  150. 

26Holdane  v.  Trustees  of  Village  of  Cold  Spring,  21  N.  Y.  474; 
Prescott  V.  Edwards,  117  Cal.  298;  Riley  v.  Hammel,  38  Conn.  574; 
City  of  Chicago  v.  Drexel,  141  111.  89;  Littler  v.  City  of  Lincoln, 
106  111.  353;  Clendenin  v.  Maryland  Construction  Co.,  86  Md.  80; 
Baker  v.  Johnston,  21  Mich.  319;  Hayden  v.  Stone,  112  Mass.  346; 
City  of  St.  Louis  v.  St.  Louis  University,  88  Mo.  155;  Price  v.  In- 
habitants of  Town  of  Breckenridge,  92  Mo.  378;  Baldwin  v.  City 
of  Buffalo,  35  N.  Y.  375;   Simmons  v.  Cornell,  1  R.  I.  519.     Contra, 

(976) 


Ch.   21]  DEDICATION.  ^   423 

According  to  some  decisions,  however,  there  is  a  presumption 
of  acceptance  if  the  dedication  is  purely  beneficial  in  char- 
acter, imposing  no  burden  on  the  public,^ "^  and  sometimes  the 
statute  is  construed  as  dispensing  with  the  necessity  of  ac- 
ceptance.^^ The  failure  of  the  public  to  accept  does  not  in. 
any  case  alfect  the  rights  of  the  purchasers  of  lots  with  ref- 
erence to  the  proposed  highway  or  park  to  assert  rights  of 
user  therein  for  the  benefit  of  their  property,  since  the  ven- 
dor is  estopped  to  deny  the  existence  of  such  rights  in  their 
favor.^^ 

The  acceptance  may  be  by  formal  action  on  the  part  of 
the  state  or  municipal  authorities,'^'^  but  this  is  not  neces- 
sary. Repairs  or  improvements  made  by,  or  under  the  au- 
thority of,  officers  who  have  general  charge  of  highways,  and 
power  to  lay  them  out,  may  show  an  acceptance  of  the  dedi- 
cation of  a  highway,"^  though  repairs  made  by  a  merely  sub- 
Harrison  County  Sup'rs  v.  Seal,  66  Miss.  129;  Point  Pleasant  Land 
Co.  V.  Cranmer,  40  N.  J.  Eq.  81. 

2 T  Archer  v.  Salinas  City,  93  Cal.  43;  Guthrie  v.  Town  of  New- 
Haven,  31  Conn.  308;  Wayne  County  v.  Miller,  31  Mich.  447;  Meier 
V.  Portland  Cable  Ry.  Co.,  16  Or.  500;  Abbott  v.  Inhabitants  of  Cot- 
tage City,  143  Mass.  521,  58  Am.  Rep.  143. 

Such  a  presumption  cannot,  it  seems,  exist  in  the  case  of  a 
highway,  at  least  if  it  is  opened,  since  there  are  liabilities  to  repair 
in  connection  with  an  opened  highway.  Abbott  v.  Inhabitants  of 
Cottage  City,  143  Mass.  521,  58  Am.  Rep.  143;  "Wayne  County  v. 
Miller,  31  Mich.  447.  Compare  Meier  v.  Portland  Cable  Ry.  Co.,  16 
Or.  500. 

28  Town  of  Lake  View  v.  Le  Bahn,  120  111.  92;  Osage  City  v. 
Larkin,  40  Kan.  206,  10  Am.  St.  Rep.  186;  Village  of  Weeping 
Water  v.  Reed,  21  Neb.  261;  Carter  v.  City  of  Portland,  4  Or.  339; 
Reid  V.  Board  of  Education  of  Edina,  73  Mo.  295. 

29  Littler  v.  City  of  Lincoln,  106  111.  353 ;  Henderson's  Trustee  v. 
Fahey,  7  Ky.  Law  Rep.  290;  Prescott  v.  Edwards,  117  Cal.  298: 
Grogan  v.  Town  of  Hay  ward  (C.  C.)  4  Fed.  161.     See  ante,  §  389. 

30  Little  Rock  v.  Wright,  58  Ark.  142;  City  of  Eureka  v.  Arm- 
strong, 83  Cal.  623:  White  v.  Smith,  37  Mich.  291;  State  v.  Ather- 
ton,  16  N.  H.  203;  State  v.  City  of  Elizabeth,  35  N.  J.  Law,  359. 

81  Town  of  Lake  View  v.  Le  Bahn,  120  111.  92;   Town  of  Fowler 

(977), 
Real  Prop.— 62  ^ 


§   424  REAL  PROPERTY.  [Ch.  21 

ordinate  officer  would  not  have  such  an  effect.^-  A  mere 
user  by  the  public  is  sufficient,  according  to  numerous  deci- 
sions, to  justify  a  finding  that  there  was  an  acceptance  of  the 
dedication. ^^  The  question  whether  there  has  been  an  ac- 
ceptance is,  like  that  of  the  offer  of  dedication,  usually  one 
of  fact  for  the  jury.^^ 

§  424.     Effect  of  dedication. 

At  common  law,  a  dedication  for  highway  purposes  does 
not  affect  the  owmership  of  the  land,  but  gives  the  public 
merely  a  right  to  use  the  land,^^  and  such  is  prima  facie  the 
result  of  a  dedication  for  a  park,  common,  or  square. ^*^     The 

v.  LJnquist,  138  Ind.  566;  Wright  v.  Tukey,  3  Gush.  (Mass.)  290; 
Kaime  v.  Harty,  73  Mo.  310;  Du  Bois  Cemetery  Co.  v.  Griffin,  165 
Pa.  St.  81;  Folsom  v.  Town  of  Underhill,  36  Vt.  580. 

32  State  V.  Bradbury,  40  Me.  154,  3  Gray's  Cas.  810. 

33  Hall  V.  Kauffman,  106  Cal.  451 ;  City  of  Denver  v.  Denver"  & 
S.  F.  Ry.  Co.,  17  Colo.  583;  Green  v.  Elliott,  86  Ind.  53;  City  of 
Hartford  v.  New  York  &  N.  E.  R.  Co..  59  Conn.  250;  Parsons  v. 
Trustees  of  Atlanta  University,  44  Ga.  529;  Attorney  General  v. 
Tarr,  148  Mass.  309;  Klenk  v.  Town  of  Walnut  Lake,  51  Minn.  381; 
Holdane  v.  Village  of  Cold  Spring,  21  N.  Y.  474;  State  v.  Borough 
of  South  Amboy,  57  N.  J.  Law,  252;  Stewart  v.  Conley,  122  Ala. 
179;  Los  Angeles  Cemetery  Ass'n  v.  City  of  Los  Angeles  (Cal.)  32 
Pac.  240.  But  see  Forbes  v.  Balenseifer,  74  111.  183;  Gilder  v.  City 
of  Brenham,  67  Tex.  345;  White  v.  Bradley,  66  Me.  254;  Morse  v. 
Stocker,  1  Allen   (Mass.)    150. 

34  City  of  Hartford  v.  New  York  &  N.  E.  R.  Co.,  59  Conn.  250; 
Grube  v.  Nichols,  36  111.  92;  Flack  v.  Village  of  Green  Island,  122 
N.  Y.  107;  Downend  v.  Kansas  City,  71  Mo.  App.  529;  Folsom  v. 
Town  of  Underhill,  36  Vt.  580. 

35  Wilder  v.  City  of  St.  Paul,  12  Minn.  192  (Gil.  116) ;  Charleston 
Rice  Milling  Co.  v.  Bennett,  18  S.  C.  254;  Indianapolis,  B.  &  W.  R. 
Co.  V.  Hartley,  67  111.  439;  City  of  San  Francisco  v.  Calderwood,  31 
Cal.  585,  91 -Am.  Dec.  542.     See  ante,  §  365. 

3u  City    of   Cincinnati   v.    White's    Lessee,    6    Pet.    (U.    S.)    431,    3 
Gray's  Cas.  799;    Raleigh  County  Sup'rs  v.  Ellison,   8  W.  Va.  308; 
Attorney  General  v.  Abbott,  154  Mass.  323;  Pomeroy  v.  Mills,  3  Vt. 
279,  23  Am.  Dec.  207. 
(978) 


Ch.    21]  DEDICATION.  g  424 

Statutes  in  regard  to  dedication  by  the  recording  of  a  plat 
frequently  provide  that  the  ownership  of  the  land,  and  not  a 
mere  right  of  user,  shall  be  vested  in  the  public,  or  in  the 
municipality  in  trust  for  the  public.^'''  Moreover,  when  land 
is  dedicated  for  purposes  which  necessarily  exclude  the  idea 
of  its  use  by  any  and  every  individual,  as  in  the  case  of  a 
dedication  for  a  school,  or  for  charitable  or  religious  uses,  it 
would  seem  that,  to  make  the  dedication  effective,  exclusive 
rights  of  enjoyment  equivalent  to  ownership  must  necessarily 
be  vested  in  the  corporation  or  association  which  carries  out 
the  purpose  of  the  dedication. ^^ 

Whether  the  ownership  or  merely  a  right  of  user  is  vested 
in  the  public,  the  land  cannot  be  aliened  by  the  public  au- 
thorities to  individuals,'"^''  nor  used  for  purposes  other  than 
those  for  which  it  was  dedicated."*" 

A  use  of  the  land  by  the  public  authorities  for  purposes 
other  than  those  contemplated  in  the  dedication  will  be  re- 
strained upon  the  application  of  owners  of  other  land  in- 

s' See  City  of  Pella  v.  Scholte,  21  Iowa,  4tt3;  City  ol:  Winona  v. 
Huff,  11  Minn.  119  (Gil.  75);  Gebhardt  v.  Reeves,  75  111.  301;  Vil- 
lage of  Grandville  v.  Jenison,  84  Mich.  54;  Incorporated  Village  of 
Fulton's  Lessee  v.  Mehrenfeld,  8  Ohio  St.  440;  Elliott,  Roads  &  S. 
§§  115,  149. 

38  See  Campbell  v.  City  of  Kansas,  102  Mo.  326;  Hunter  v.  Trus- 
tees of  Sandy  Hill,  6  Hill  (N.  Y.)  407. 

■■'■'■>  City  of  Alton  v.  Illinois  Transp.  Co.,  12  111.  38,  52  Am.  Dec.  479: 
Trustees  of  Augusta  v.  Perkins,  3  B.  Men.  (Ky.)  437;  Cummings 
V.  City  of  St.  Louis,  90  Mo.  259;  Corporation  of  Seguin  v.  Ireland, 
58  Tex.  183. 

40  Board  of  Regents  for  Normal  School  Dist.  No.  3  v.  Painter,  102 
Mo.  464;  Trustees  of  Methodist  Episcopal  Church  of  Hoboken  v. 
City  of  Hoboken,  33  N.  J.  Law,  13,  97  Am.  Dec.  696;  Western  Rail- 
way of  Alabama  v.  Alabama  G.  T.  R.  Co..  96  Ala.  272;  Arkansas 
River  Packet  Co.  v.  Sorrels,  50  Ark.  466;  Lutterloh  v.  Town  of 
Cedar  Keys,  15  Fla.  306;  City  of  Jacksonville  v.  Jacksonville  Ry. 
Co.,  67  111.  540;  Church  v.  City  of  Portland,  18  Or.  73;  Com.  v. 
Rush,  14  Pa.  St.  186. 

(979) 


§   424  REAL  PROPERTY.  [Ch.    21 

jured  bj  such  use,^^  and  a  suit  for  this  purpose  may  be  main- 
tained by  the  dedicator,  it  seems,  in  case  the  ownership  of 
the  land  is  still  in  him,^^  but  not  if,  under  the  statute,  the 
ownership  is  in  the  public.'*^ 

In  case  a  right  of  user  only  is  vested  in  the  public,  an 
abandonment  of  such  user  has  the  effect  of  leaving  the  land 
free  from  the  burden  thereof,  in  the  original  dedicator  or 
those  claiming  under  him.^^  And  when,  under  the  statute, 
the  ownership  is  vested  in  the  public,  if  the  authorities  en- 
tirely relinquish  the  use  of  the  land,  or  the  use  for  which  the 
land  was  dedicated  becomes  impossible,  the  land  reverts  to 
the  original  dedicator,  or  to  persons  claiming  under  him.^^ 
An  improper  use  of  the  land  by  the  public  authorities  is  not, 
however,  sufficient  of  itself  to  terminate  the  rights  of  the 
public  therein,  whatever  be  the  character  of  such  rights.^^ 

*iHuber  v.  Gazley,  18  Ohio,  18,  3  Ohio  St.  399;  Corporation  of 
Seguin  v.  Ireland,  58  Tex.  183;  Strange  v.  Hill  &  W.  D.  S.  Ry.  Co., 
54  Iowa,  669;  State  v.  Travis  County,  85  Tex.  435;  Church  v.  City 
of  Portland,  18  Or.  73;  Price  v.  Thompson,  48  Mo.  363;  Lutterloh 
V.  City  of  Cedar  Keys,  15  Fla.  306. 

42  Hardy  v.  City  of  Memphis,  10  Heisk.   (Tenn.)  127. 

43  United  States  v.  Illinois  Cent.  R.  Co.,  154  U.  S.  225.  See  Wil- 
liams V.  Milwaukee  Industrial  Exposition  Ass'n,  79  Wis.  524.  Con- 
tra, Warren  v.  City  of  Lyons  City,  22  Iowa,  351. 

44  Mahoning  County  Com'rs  v.  Young,  8  C.  C.  A.  27,  59  Fed.  96; 
Baltimore  &  O.  R.  Co.  v.  Gould,  67  Md.  60;  Town  of  Freedom  v. 
Norris,  128  Ind.  377;  Benham  v.  Potter,  52  Conn.  248;  Thomsen  v. 
McCormick,  136  111.  135;  Bayard  v.  Hargrove,  45  Ga.  342.  See  ante, 
§  365. 

45  Board  of  Education  of  the  Incorporated  Village  of  Van  Wert 
V.  Inhabitants  of  Village  of  Van  Wert,  18  Ohio  St.  221,  98  Am.  Dec. 
114;  Kent  County  Sup'rs  v.  City  of  Grand  Rapids,  61  Mich.  144; 
City  of  Newark  v.  Watson,  56  N.  J.  Law,  667;  State  v.  Travis 
County,  85  Tex.  435;  Heard  v.  City  of  Brooklyn,  60  N.  Y.  242;  Geb- 
hardt  v.  Reeves,  75  111.  301. 

46  Barclay  v.  Howell's  Lessee,  6  Pet.  (U.  S.)  498;  Williams  v. 
First  Presbyterian  Soc.  in  Cincinnati,  1  Ohio  St.  478;  Hardy  v. 
City  of  Memphis,  10  Heisk.  (Tenn.)  127. 

(980) 


CHAPTER  XXII. 

INTESTATE   SUCCESSION. 

§  425.  General  considerations. 

426.  Descent  to  issue. 

427.  Surviving  consort  as  heir. 

428.  Parent  as  heir. 

429.  Descent  to  collateral  kindred. 

430.  Kindred  of  the  half  blood, 

431.  Representation. 

432.  Ancestral  lands. 

433.  Illegitimate  children. 

434.  Unborn  children.  ' 

435.  Advancements. 

Upon  the  death  of  the  owner  of  an  estate  of  inheritance 
without  leaving  a  will,  it  usually  passes,  subject  to  the  rights 
of  the  surviving  wife  or  husband,  to  persons  designated  by 
statute  to  take  in  such  case  by  virtue  of  their  relationship  to 
the  decedent,  known  as  the  latter's  "heirs."  An  estate  less 
than  freehold  passes,  with  other  personal  property,  to  the  per- 
sonal representative,  to  be  distributed  to  the  next  of  kin. 

In  this  country,  the  children  of  an  intestate,  including  any 
posthumous  child,  share  his  property  equally,  without  reference 
to  age  and  sex.  An  illegitimate  child  may  usually,  by  force 
of  statute,  inherit  from  his  mother,  and  from  his  father,  if  ac- 
knowledged by  him. 

If  there  are  no  children,  the  land  passes  to  the  parents,  sur- 
viving consort,  brothers  and  sisters,  or  other  collateral  kindred, 
the  statutory  provisions  in  this  regard  differing  in  the  various 
states. 

The  statutes  frequently  provide  that  the  children  or  descend- 
ants of  a  person  who  would  have  inherited  in  case  he  had  sur- 

(981) 


^  425  REAL  PROPERTY.  [Ch.  22 

vived  the  intestate  shall  have  his  share,  by  right  of  "repre- 
sentation." 

Gifts  made  by  the  intestate,  before  his  death,  to  one  who 
subsequently  becomes  his  heir,  are,  if  so  intended,  treated  as 
"advancements,"  and  deducted  from  his  share  of  the  estate. 

§  425.     General  considerations. 

At  common  law,  the  real  property  belonging  to  decedents 
passed,  in  the  absence  of  a  valid  will,^  to  persons  standing  in 
a  position  of  blood  relationship  to  them,  according  to  certain 
established  rules  or  '^canons"  of  descent.^  Personal  prop- 
erty, on  the  other  hand,  including  chattels  real,  passed  to 
the  administrator,  appointed  by  the  ecclesiastical  court  from 
among  the  intestate's  next  of  kin,  who  usually,  whether  right- 
ly or  wrongly,  appropriated  to  his  own  use  all  the  surplus 
after  payment  of  debts,^  until  by  statute  it  was  provided 
that  such  surplus  should  be  distributed,  in  a  certain  manner, 
to  the  widow  and  children,  or,  in  default  of  children,  to  the 
next  of  kin.* 

In  this  country,  the  common-law  distinction  between  real 
and  personal  property  in  this  regard  is  still  retained  in  a 
majority  of  states,  though  in  some  the  executor  is  empow- 
ered, upon  receiving  authority  from  the  court,  to  sell  real 
property  for  the  payment  of  debts.^  In  some  states,  how- 
ever, the  statute  provides  that  real  property  shall  pass  to  the 
personal  representative,  to  be  administered  by  him  in  the 
same  manner  as  personal  property,*'  and  there  is  a  growing 

1  But  a  will  was  valid,  except  by  particular  custom,  only  after 
the  Statute  of  Wills.     See  ante,  §  409. 
2Litt.  §§  2-8;  2  Bl.  Comm.  208  et  seq. 

3  2  Bl.  Comm.  515;   Holdsworth  &  V.  Law  of  Succession,  132. 

4  22  &  23  Car.  II.  c.  10. 

5  Post,  §  462. 

6  1  Woerner,  Administration,  §§  276,  337;  1  Dembitz,  Land  Titles,  § 
28;  11  Am.  &  Eng.  Enc.  Law,  1037  et  seq. 

(982) 


Ch.   22]  INTESTATE    SUCCESSION.  {^   42S 

tendency  to  obliterate  the  distinctions  between  the  two  chisscs 
of  property  as  regards  the  powers  of  the  executor  or  admin- 
istrator in  regard  thereto.  Generally,  moreover,  in  this 
country,  the  persons  to  whom  the  real  projx'rty  passes  upon 
the  death  of  the  owner  intestate  are  approximately  the  same 
as  those  entitled  to  the  personal  property  when  distributed  by 
the  personal  representative. 

At  common  law,  the  right  of  succession  to  real  property  on 
the  death  of  the  owner  was  determined  by  the  relationship  of 
the  claimant  to  the  person  who  last  died  seised  in  deed  of  the 
land.''^  This  rule  has  been  changed  in  England  by  a  statu- 
tory provision  that  descent  shall  be  traced  from  the  last  pur- 
chaser of  the.land,^  Avhile  in  this  country,  in  most,  if  not  all, 
the  states,  descent  is  traced  from  the  person  last  entitled  to 
the  land,  regardless  of  whether  he  was  seised,  or  whether  he 
obtained  the  land  by  purchase  or  descent.^ 

At  common  law,  as  in  England  at  the  present  day,  the 
male  issue  inherits  before  the  female,  and,  when  there  are 
two  or  more  males  of  equal  degree,  the  elder  alone  inherits, 
while  females  inherit  all  together.     These  rules,  in  so  far 

TLitt.  §  8;    2  Bl.  Comm.  209. 

This  common-law  rule  that  seisin  in  deed  makes  the  root  of 
descent,  in  connection  with  the  rule  that  persons  of  the  half  blood 
could  not  inherit,  received  what  was  regarded  as  its  typical  ex- 
emplification in  the  following  case:  If,  on  the  death  of  a  father 
seised  in  fee  simple,  leaving  a  son  and  a  daughter  by  a  first  mar- 
riage, and  a  son  by  a  second  marriage,  the  elder  son,  the  heir,  en- 
tered and  obtained  seisin,  and  then  died  without  issue,  his  half 
brother  could  not  inherit,  but  the  land  passed  to  the  sister,  while, 
if  he  did  not  enter,  the  land  would  pass  to  the  half  brother.  Hence 
the  maxim,  "Possessio  fratris  de  feodo  simplici  facit  sororem  esse 
haeredem,"  and  the  rule  that  seisin  in  deed  is  necessary  to  make 
the  root  of  descent  was  freauently  referred  to  as  the  doctrine  of 
"possessio  fratris."  See  Litt.  §  8;  Williams,  Seisin,  55;  Challis, 
Real  Prop.  187. 

8  3  &  4  Wm.  IV.  c.  106,  "The  Inheritance  Act." 

9  4  Kent's  Comm.  388;  1  Dembitz,  Land  Titles,  §  30. 

(983) 


§   427  REAL  PROPERTY.  [Ch.  22 

as  thej  give  priority  to  the  male  issue,  and  to  the  eldest  of 
such  issue,  have  been  changed  in  all  the  states  of  this  coun- 
try, and  all  those  in  the  same  degree  of  relationship,  whether 
male  or  female,  share  equally  in  the  inheritance,  the  legis- 
lation in  this  country  having  followed  in  this  respect,  as  it  has 
frequently  done  in  other  respects,  the  provisions  of  the  Eng- 
lish statute  as  to  the  distribution  of  personal  property.^^ 

§  426.     Descent  to  issue. 

In  all  the  states,  realty  descends  to  all  the  legitimate  chil- 
dren of  deceased  living  at  his  death,  and  to  the  descendants 
of  deceased  children,  these  latter  taking  per  stirpes,  and  not 
per  capita, — that  is,  the  descendants  of  each  child  taking 
what  their  ancestor  would  have  taken  had  he  been  alive,  with- 
out reference  to  their  number.^ ^  In  case  all  the  children  of 
the  intestate  are  dead,  the  grandchildren  and  issue  of  de- 
ceased grandchildren  inherit  in  their  place.  Such  descend- 
ants take  per  stirpes  if  they  are  not  all  in  the  same  degree  of 
relationship  to  the  intestate,  as  when  some  are  grandchildren 
and  some  are  great-grandchildren,  while,  if  they  are  all  in 
the  same  degree  of  relationship,  they  take  in  some  states  per 
capita,  though  in  other  states  per  stirpes}^ 

§  427.     Surviving  consort  as  heir. 

At  common  law,  the  surviving  husband  was  entitled  to  an 
estate  by  curtesy  in  his  wife's  real  property,^  ^  while  he  took 
an  absolute  interest  in  her  personal  property,  including  chat- 

104  Kent's  Comm.  379;  1  Stimson's  Am.  St.  Law,  §  3101  et  seq. 
Occasionally  a  naked  legal  title  still  descends  as  at  common  law. 
As  to  estates  tail,  see  ante,  §  29. 

11  1  Stimson's  Am.  St.  Law,  §  3101. 

1-  1  Stimson's  Am.  St.  Law,  §§  3103.  3137;  1  Dembitz.  Land  Titles. 
§  33. 

1:!  Ante,  5S  204-211. 


Ch.   22]  INTESTATE   SUCCESSION.  §   427 

tels  real.^^  Apart  from  bis  estate  by  curtesy,  ber  real  prop- 
erty did  not  pass  to  bim,  even  tbougb  otberwise  it  escbeated 
for  failure  of  beirs.  In  tbis  country,  at  tbe  present  day,  tbe 
surviving  busband  is  frequently  given  a  fee-simple  interest 
in  bis  wife's  real  property.  In  some,  be  is,  if  tbe  wife  leaves 
no  issue,  given  a  fee-simple  interest  in  all  ber  realty,  wbile 
in  some  be  is  given  one-balf  or  two-tbirds  of  ber  realty  in 
sucb  case.  In  ^  number  of  states,  altbougb  tbere  are  chil- 
dren, be  takes  a  sbare  by  descent,  wbicb  is  greater  or  less, 
according  to  tbe  number  of  cbildren  wbo  are  to  sbare  in  tbe 
intestate's  property.  In  some  states,  moreover,  be  takes  all 
tbe  realty,  if  tbe  wife  leaves  no  issue,  parent,  nor  brotber  or 
sister,  and  in  most,  if  not  in  all,  tbe  states,  be  takes  it  if  sbe 
leaves  no  kindred.^  ** 

Tbe  surviving  wife  bad,  at  common  law,  her  rigbt  of  dow- 
er only  out  of  bis  realty,  wbile,  by  tbe  English  statute  of 
distribution,  she  was  given  one-third  of  his  personalty,  un- 
less he  left  no  issue,  in  which  case  she  had  one-half.^ ^  In 
tbis  country  the  widow  is  frequently,  by  statute,  given  a  fee- 
simple  interest  in  a  portion  of  ber  husband's  realty  in  certain 
contingencies,  as  when  be  leaves  no  issue,  or  no  issue,  parent, 
or  brotber  or  sister,  or  when  he  leaves  no  kindred,  bei;  rights 
corresponding,  in  a  general  way,  to  those  of  a  surviving  hus- 
band.^' In  a  number  of  states,  moreover,  she  is  given  a  third 
or  a  half  in  fee  simple,  even  though  ber  busband  leaves  is- 
sue,^ ^  and  this  she  is  frequently  allowed  to  take  in  lieu  of 
any  provisions  made  for  her  in  bis  will.^^ 

11  Co.  Litt.  351;  2  Bl.  Comm.  434. 

15  1  Stimson's  Am.  St.  Law,  §§  3105,  3109,  3115,  3119,  3123;  1 
Woerner,  Administration,  §  66;   1  Dembitz,  Land  Titles,  §  32. 

16  2  Bl.  Comm.  515. 

1' 1  Stimson's  Am.  St.  Law,  §§  3109,  3115,  3119,  3123;  1  Woerner, 
Administration.  §  67;   1  Dembitz,  Land  Titles,  §  32. 
i«  1   Stimson's  Am.  St.  Law,   §  3105. 
li*  1   Stimson's  Am.   St.  Law,   §  3262. 

(985) 


g   429  REAL  PROPERTY.  [Ch.  22 

§  428.     Parent  as  heir. 

At  common  law,  land  could  never  lineally  ascend, — that  is, 
it  could  not  pass  to  the  father  or  grandfather  of  the  decedent 
upon  the  latter's  death,  though  it  could  pass  to  his  uncle,  the 
brother  of  his  father,  and  might  from  him  pass  to  the  fa- 
ther.^" This  rule  has  been  entirely  changed  in  this  country, 
and  the  statute  frequently  provides  that  the  decedent's  prop- 
erty shall  pass  to  his  father  or  mother  in  certain  cases. 
Thus,  in  some  states  it  is  provided  that,  if  the  intestate 
leave  no  descendants,  his  property  shall  pass  to  his  father,  or 
to  the  father  or  mother,  or  to  the  mother,  together  with  broth- 
ers and  sisters,  though  in  some  states  the  brothers  and  sisters 
of  deceased  are  preferred  to  either  of  his  parents. ^^ 

§  429.     Descent  to  collateral  kindred. 

In  case  the  intestate  leaves  no  issue  surviving,  and  the 
realty  does  not  pass  entirely  to  the  surviving  consort,  or  to 
one  or  both  of  the  parents,  under  the  statutes  referred  to 
above,  it  descends  among  the  collateral  kindred  of  the  intes- 
tate,— that  is,  to  persons  not  lineally  related  to  him,  but  re- 
lated by  reason  of  the  fact  that  they  are  descended  from  the 
same  ancestor.  Among  such  collateral  kindred  the  brothers 
and  sisters  and  their  descendants  hold  the  first  place,  and 
are  sometimes,  by  the  terms  of  the  statute,  preferred  to  the 
parents  of  deceased.^^ 

As  between  other  collateral  kindred  not  particularly  speci- 
fied in  the  statute  of  descent, those  standing  in  an  equal  degree 
of  relationship  to  the  intestate  share  the  inheritance  to  the 

2f'  Litt.  §  3.  Different  explanations  of  the  origin  of  tiiis  rule  have 
been  given.  See  2  Bl.  Comm.  211  et  seq.;  2  Pollock  &  Maitland, 
Hist.  Eng.  Law,  287  et  seq.;  Holdsworth  &  Vickers,  Law  of  Suc- 
cession, 152. 

211  Stimson's  Am.  St.  Law,  §§  3107,  3111,  3117;  1  Woerner,  Ad- 
ministration, §  68. 

22  1  Stimson's  Am.  St.  Law,  §§  3107,  3111,  3113,  3121. 

(986) 


Ch,   22]  INTESTATE   SUCCESSION.  j;   430 

exclusion  of  those  in  a  more  distant  degree.  In  calculating 
the  degrees  of  relationship  for  this  purpose,  the  common  law 
adopted  the  rule  that  the  intestate  and  a  particular  claim- 
ant were  to  be  regarded  as  in  the  degree  of  relationship  to 
one  another  which  corresponded  to  the  number  of  degrees 
between  their  common  ancestor  and  the  one  of  his  two  de- 
scendants who  was  most  distant  from  him.  So,  if  the 
claimant  and  intestate  were  both  grandchildren  of  the  com- 
mon ancestor,  they  were  regarded  as  related  to  one  another 
in  the  second  degree,  while,  if  one  was  a  grandchild  and  the 
other  a  great-grandchild,  they  were  related  in  the  third  de- 
gree. By  the  civil-law  method  of  computing  relationship, 
on  the  other  hand,  the  degrees  between  the  common  ancestor 
and  the  intestate  are  added  to  those  between  the  former  and 
the  claimant,  in  order  to  ascertain  the  degree  of  relation- 
ship; and  so  two  grandchildren  of  a  common  ancestor  are 
related  in  the  fourth  degree,  and  a  grandchild  and  a  great- 
grandchild in  the  fifth  degree.^^ 

In  this  country,  in  the  majority  of  the  states,  the  statute' 
provides  that  the  degrees  of  kindred  shall  be  computed  ac- 
cording to  the  rule  of  the  civil  law,  though,  in  a  few,  that 
of  the  common  law  is  adopted."'*  The  preference  shown  for 
the  civil  law  is  in  accord  with  the  general  tendency  to  fol- 
low the  English  statute  of  distributions,  which  was  construed 
with  reference  to  the  civil-law  rule.^^ 

§  430.     Kindred  of  the  half  blood. 

At  common  law,  in  order  that  one  might  inherit  as  a  col- 
lateral kinsman  of  the  intestate,  it  was  necessary  that  they 

i3  2  Bl.  Comm.  206  et  seq. 

24  1  Stimson's  Am.  St.  Law,  §§  3121,  3139;   1  Woerner,  Adminis- 
tration, §  72. 

25  See  2  Bl.  Comm.  516.  and  Christian's  note;    L16yd  v.  Tench,  2 
Ves.  Sr.  212. 

(987) 


§   431  REAL  PROPERTY.  [Ch.    22 

both  be  descended  not  only  from  the  same  person,  but  from 
the  same  marriage  of  that  person, — that  is,  the  claimant 
must  have  been  a  kinsman  of  the  whole,  and  not  of  the  half, 
blood.  So,  one  could  not  inherit  from  his  half  brother,  even 
though  the  land  had  descended  from  their  common  parent 
to  such  half  brother,  and  though  otherwise  the  land  would 
escheat  for  want  of  heirs.  ^^  This  rule  has  been  changed  bj 
statute  in  most,  if  not  all,  the  states,  but  the  statutory  provi- 
sions on  the  subject  are  very  divergent.  In  a  few  states, 
kindred  of  the  half  blood  have  the  same  rights  of  succession 
as  those  of  the  whole  blood;  and  in  some  they  inherit  half 
shares  only  as  against  the  whole  shares  passing  to  those  of 
the  whole  blood.  In  a  number  of  states,  while  the  distinc- 
tion between  the  whole  and  half  blood  no  longer  exists  in 
connection  with  land  purchased  by  the  intestate,  it  does  ex- 
ist as  to  ancestral  land,  so  as  to  exclude  from  any  share 
therein  collateral  kin  not  of  the  blood  of  the  ancestor  from 
whom  the  land  was  derived.  In  a  few  states  the  half  blood 
does  not  take  except  in  default  of  kindred  of  the  whole  blood 
in  the  same  degree  of  relationship.^^ 

§  431.     Representation. 

The  statutes  frequently  provide  that  the  descendants  of  a 
person  deceased  shall  inherit  the  share  which  would  have 
passed  to  such  person  had  he  survived  the  intestate,  the  de- 
scendants being  then  said  to  take  "by  representation."  Since 
the  statutes  expressly  give  the  right  of  succession  to  the  di- 
rect descendants  of  the  intestate,  and  declare  whether  they 
are  to  take  per  stirpes  or  per  capita,  the  application  of  the 
principle  of  representation  is  not  usually  called  for  in  their 
favor.     As  regards  collateral  kindred,  there  is  in  some  states 

26Litt.  §§  6-8;   2  Bl.  Comm.  227. 

27  1  Stimson's  Am.  St.  Law,  §  3133;  1  Woerner,  Administration, 
§  70;  1  Dembltz,  Land  Titles,  §  37. 

(988) 


Ch.  22]  INTESTATE   SUCCESSION.  i^   43I 

a  general  provision  that  any  descendants  of  one  deceased 
shall  take  the  share  which  such  person  would  have  taken,  but, 
more  usually,  the  right  of  representation  among  collaterals 
is  restricted  to  the  descendants  of  a  deceased  brother  or  sis- 
ter of  the  intestate,  who  are  thus  given  the  right  to  stand 
in  the  place  of  the  former  as  regards  the  inheritance,  and 
share  the  property  of  the  intestate  with  any  surviving  broth- 
ers and  sisters  or  descendants  of  other  deceased  brothers  and 
sisters.  Thus,  if  the  intestate  left  surviving  a  brother,  and 
the  grandchildren  of  a  deceased  sister,  though  such  grand- 
children could  not  otherwise  assert  any  right  to  share  the  in- 
testate's property  with  the  surviving  brother,  since  he  stands 
in  a  closer  degree  of  relationship  to  the  intestate,  they  can  do 
so  by  reason  of  their  right  of  representation.  In  some 
states,  however,  the  right  of  representation  is  not  conceded  to 
all  descendants  of  a  deceased  brother  or  sister,  but  is  re- 
stricted to  the  children  of  such  brother  or  sister,  the  result 
of  which  would  be,  in  the  case  stated  above,  that  the  surviv- 
ing brother  would  take  all  the  intestate's  property,  to  the  ex- 
clusion of  the  grandchildren  of  the  deceased  brother,  though 
the  children  of  the  deceased  brother  would  have  been  en- 
titled.^® The  statutes  allowing  representation  have  no  ap- 
plication, it  seems,  except  for  the  purpose  of  entitling  to  a 
share  of  the  inheritance  a  person  or  persons  who  would  other- 
wise take  nothing,  owing  to  the  existence  of  persons  more 
closely  related  to  the  intestate,  and  so  the  descendants  of 
deceased  brothers  and  sisters  of  intestate,  if  all  in  the  same 
generation,  take  not  by  representation,  but  directly  as  heirs. 
When  the  descendants  of  one  deceased  take  by  representa- 
tion, however  many  there  be  of  them,  they  can,  all  together, 
take  only  the  share  which  their  apcestor  would  have  taken, — 
that  is,  they  take  per  stirpes,  although,  if  they  had  taken  in 

28  1  Stimson's  Am.  St.  Law,  §§  3103,  3138;   1  Woerner,  Adminis- 
tration, §  71;  1  Dembitz,  Land  Titles,  §  35. 

(989^ 


§   433  HEAL  PROPERTY.  [Qh.    22 

their  own  right,  and  not  bv  representation,  they  would  have 
taken  per  capita. 

§  432.    Ancestral  lands. 

At  common  law,  in  case  of  failure  of  lineal  descendants  of 
the  person  last  seised,  the  land  passed  to  his  collateral  rela- 
tions, provided  only  they  were  of  the  blood  of  the  first  pur- 
chaser, by  whom  the  land  was  brought  into  the  family.^^ 
This  rule  of  the  common  law  survives  to  some  extent  in  the 
statutory  provisions,  found  in  a  number  of  states,  to  the 
effect  that,  if  the  land  came  to  the  intestate  otherv\"ise  than 
by  purchase,  or,  in  some  states,  if  it  came  to  him  either  by 
descent  or  by  gift  or  devise  from  an  ancestor,  it  shall  pass, 
not  to  his  kindred  generally,  but  only  to  such  kindred  as  are 
of  the  blood  of  the  ancestor  from  whom  it  was  derived  by 
him.^"  Of  the  same  nature  is  the  provision  found  in  many 
states  that,  upon  the  death  of  a  minor  unmarried,  leaving 
property  inherited  from  either  parent,  it  shall  go  to  the 
other  children  of  the  same  parent.^^  The  word  "ancestor," 
used  to  describe  the  person  from  whom  the  land  must  have 
come  in  order  to  be  within  the  operation  of  the  provision, 
refers  to  any  person,  whether  lineally  or  collaterally  related 
to  the  intestate,  from  whom  the  land  might  pass  to  the  lat- 
ter under  the  laws  of  descent,  and  from  whom  the  land  did  in 
fact  actually  pass  directly  to  the  intestate.^^ 

§  433.     Illegitimate  children. 

At  common  law,  a  child  born  out  of  wedlock  was  regarded 
as  filius  nullius,  and  as  consequently  bearing  no  relationship 

-»Litt.  §  4;  2  Bl.  Comm.  §  220. 

so  1  Stimson's  Am.  St.  Law,  §  3107. 

SI  1  Dembitz,  Land  Titles,  §  36;   1  Stimson's  Am.  St.  Law,  §  3101. 

3-;  Buckingham  v.  Jacques,  37  Conn.  402 ;  Wheeler  v.  Clutterbuck, 
52  N.  Y.  67;  Prickett's  Lessee  v.  Parker,  3  Ohio  St.  394;  Brower  v. 
Hunt,  18  Ohio  St.  311;  Morris  v.  Potter,  10  R.  I.  58. 

(990) 


Ch.  22]  INTESTATE   SUCCESSION.  ^  434 

to  any  persons  otlier  tluui  his  o^^al  otispring.  Consequently 
he  could  be  the  heir  neither  of  his  own  father  or  mother,  nor 
of  any  other  person,  and  no  persons  could  inherit  from  him 
except  the  heirs  of  his  body/''^  This  rule  has  been  changed 
generally  in  this  coimtry  by  various  statutory  provisions.  In 
the  first  place,  the  state  statute  frequently  provides  that  the 
intermarriage  of  the  parents  after  the  birth  of  the  child,  or 
such  intermarriage  when  accompanied  by  the  father's  ac- 
knowledgment of  the  child,  shall  render  the  child  legitimate, 
and  in  some  states  the  acknowledgment  by  the  father 
without  intermarriage  has  this  effect.  In  some  states  the 
statute  provides,  however,  that  an  acknowledgment  of  the 
child  shall  not  enable  the  child  to  inherit  from  the  kindred 
of  the  father.^^ 

In  most  states,  by  statute,  the  illegitimate  children  inherit 
from  the  mother  equally  with  the  legitimate  children,  and  in 
some  states  they  inherit  also  from  her  kindred,  though  in  a 
majority  of  the  states,  while  inheriting  from  the  mother, 
they  do  not  inherit  from  her  kindred.  In  a  few  states  they 
inherit  from  the  mother  only  in  case  of  default  of  lawful 
issue.^°  The  property  of  an  illegitimate  child  will  descend 
to  the  surviving  husband  or  wife,  or  to  the  children,  as  in  the 
case  of  any  other  person  dying  intestate.  In  default  of  such 
others  entitled  to  inherit,  the  decedent's  property  goes  usu- 
ally, under  the  statute,  to  his  mother  and  her  kindred.^^ 

§  434.     Unborn  children. 

At  common  law,  a  child  en  venire  sa  tnere  at  the  time  of 

■•'-  1  Bl.  Comm.  459;  2  Kent's  Comm.  212. 

34  1  Stimson's  Am.  St.  Law,  §§  6631,  6632. 

:•■'' 1  Stimson's  Am.  St.  Law,  §  3151;  1  Woerner,  Administration, 
§  75. 

s"  1  Stimson's  Am.  St.  Law,  S  3154;  1  Woerner,  Administration, 
§  75. 

(991) 


^   435  REAL  PROPERTY.  [Ch.    22 

the  death  of  the  intestate  is  regarded  as  living  for  the  pur- 
pose of  taking  from  him  bj  descent.^"  This  rule  is  con- 
firmed by  statute  in  many  states,  but  in  some  the  statute  ap- 
plies only  to  a  child  of  the  intestate  born  after  his  death, 
and,  in  others,  only  to  posthumous  children  descended  from 
him.^^ 

§  435.     Advancements. 

An  advancement  is  a  giving,  by  anticipation,  to  a  child  or 
other  relative,  of  a  part  or  the  whole  of  what  the  donee  would 
receive  on  the  death  of  the  donor  intestate,  with  the  result, 
generally  speaking,  that  the  amount  thereof  is  deducted  in 
determining  the  share  of  such  donee  after  the  donor's  death. 
This  doctrine  of  advancements  is  based  exclusively  on  stat- 
utes, and  these  differ  very  considerably  in  the  different  states. 
In  some  states  the  statute  applies  only  in  the  case  of  an 
advancement  to  a  child  or  children  of  the  intestate,  so  that  a 
gift  to  a  grandchild  would  not  be  charged  against  him  as  an 
advancement.  In  some  states  a  gift  to  any  descendant  of 
the  intestate  is  regarded  as  an  advancement  to  him,  for  the 
purpose  of  determining  his  share  of  the  inheritance,  and  in 
a  number  of  states  a  gift  to  a  child  or  other  descendant  is,  in 
case  such  child  or  descendant  dies  before  the  donor,  charged 
against  the  share  which  he  would  have  taken,  and  so  de- 
ducted from  the  share  taken  by  his  children  or  descendants. 
In  a  few  states  a  gift  to  any  possible  heir  is  regarded  as  an 
advancement  in  case  the  donee  turns  out  to  be  the  actual 
heir.^^ 

374  Kent's  Comm.  412;  Challis,  Real  Prop.  Ill;  Doe  d.  Clarke  v. 
Clarke,  2  H.  Bl.  399. 

38  1  Stimson's  Am.  St.  Law,  §§  2844,  3135,  3136;  1  Woerner,  Ad- 
miaistration,  §  74. 

39  1  Stimson's  Am.  St.  Law,  §§  3163,  3164,  3168;  2  Woerner,  Ad- 
ministration, §  559. 

(992) 


Ch.  22]  INTERSTATE  SUCCESSION.  g   435 

Tiie  question  whether  a  gift  to  a  possible  heir  or  distribu 
tee  is  to  be  regarded  as  an  advancement  is  a  question  as  to 
the  intention  of  the  donor,  and,  apart  from  statute,  a  gift  to 
an  adult  child,  if  of  substantial  value,  is  usually  presumed 
to  be  an  advancement.^^  In  a  number  of  states  there  are 
statutory  provisions  to  the  effect  that  the  gift,  in  order  to  con- 
stitute an  advancement,  must  be  acknowledged  in  writing  as 
an  advancement  by  the  donee,  or  must  be  expressed  in  the 
gift  or  grant  to  be  made  as  such,  or  must  be  so  charged  by 
the  donor  in  writing.^ ^  In  some  states  it  is  provided  that 
maintaining,  educating,  or  giving  money  to  a  minor  child, 
without  any  view  to  a  portion  or  settlement  for  life,  is  not 
an  advancement."*^  The  statute  in  many  states  declares 
that,  if  the  amount  of  the  advancement  exceeds  the  share  to 
which  the  donee  would  be  entitled  on  the  death  of  the  donor 
intestate,  though  he  need  refund  no  part  of  what  he  has  re- 
ceived, he  can  receive  nothing  further  from  the  intestate's 
estate.  In  case  the  advancement  is  not  equal  to  the  share 
to  which  he  is  entitled,  the  donee,  in  a  number  of  states,  is 
given  so  much  of  the  intestate's  property  as  will  make  all 
the  shares  equal;  and  in  some  states  it  is  provided  that  the 
advancement  is  to  be  charged  against  the  share  to  which  the 
donee  is  entitled  in  either  the  real  or  the  personal  property, 
according  as  the  advancement  may  have  been  the  one  or  the 
other,  and  that,  if  the  advancement  would  exceed  the  amount 
to  which  he  may  be  entitled  out  of  either  class  of  property, 
his  share  in  the  other  class  shall  be  proportionally  reduced. 
In  some  states  it  is  provided  in  terms  that  the  donee  must, 
in  order  to  obtain  his  proper  share  in  the  intestate's  property, 
bring  the  amount  of  the  advancement  into  "botch  pot," — 

*o  1  Woerner,  Administration,  §  555. 
41  1  Stimson's  Am.  St.  Law,  §  3162. 
*2 1  Stimson's  Am.  St.  Law,  §  3161. 

(993) 
Real  Prop.— 63 


§   435  REAL  PROPERTY.  [Ch.  22 

that  is,  he  must  contribute  to  the  common  fund  the  amount 
of  his  advancement,  and  shall  then  receive  therefrom  the 
same  amount  as  if  the  advancement  had  not  been  made.^^ 

The  statutes  in  regard  to  advancements  have  no  applica- 
tion, as  a  general  rule,  in  the  case  of  a  partial  intestacy,  since 
it  is  presumed  that  the  will  would  have  mentioned  any  gifts 
which  it  was  intended  should  be  regarded  as  advancements.^* 

*■■  1  Stimsou's  Am.  St.  Law,  §  3163. 

iil   Woerner,  Administration,   §   553;    1   Dembitz,   Land  Titles,   § 
248. 
(994) 


CHAPTER  XXIII. 

ADVERSE  POSSESSION  OF  LAND. 

§  436.  General  considerations. 

437.  Duration  and  continuity  of  possession. 

438.  Tacldng. 

439.  Personal  disabilities. 

440.  Exception  in  favor  of  the  sovereign. 

441.  Actual  and  visible  possession. 

442.  Exclusiveness  of  possession. 

443.  Hostile  character  of  possession. 

444.  Extent  of  possession. 

By  the  adverse  possession  of  land  belonging  to  another,  for 
the  period  prescribed  by  statute  for  the  bringing  of  an  action 
to  recover  land,  not  only  the  right  to  bring  such  action  is 
barred,  but  the  person  in  possession  is  usually  regarded  as  ac- 
quiring the  ownership  of  the  land  in  fee  simple. 

The  adverse  possession  must  be  continuous  and  uninter- 
rupted for  the  statutory  period,  but  it  need  not  be  by  the  same 
person  during  all  that  period,  it  being  sufficient  that  there  be 
a  privity  between  the  persons  successively  in  possession. 

If  the  owner  of  the  land  is  under  a  disability  at  the  time 
of  the  beginning  of  the  adverse  possession,  so  as  to  be  unable  to 
sue  on  account  thereof,  he  is,  by  the  statute,  given  a  certain 
period  after  the  expiration  of  the  disability  for  the  bringing  of 
an  action  against  the  person  in  possession.  The  statutory 
period,  moreover,  does  not,  in  the  absence  of  a  specific  provision 
to  the  contrary,  run  in  favor  of  a  person  in  possession  of  land 
belonging  to  the  sovereign. 

The  possession,  in  order  to  have  the  effect  of  barring  the 
right  of  action,  or  of  transferring  the  ownership,  must  be 
actual,  visible,  and  exclusive,  and  must  be  hostile  to  the  owner, 

(995) 


§   436  REAL  PROPERTY.  [Ch.   23 

— that  is,  it  must  be  under  a  claim  of  right,  and  such  as  to  ex- 
clude any  recognition  of  the  rights  of  the  true  owner. 

One  in  adverse  possession  of  part  of  a  tract  of  land,  to  all 
of  which  he  has  color  of  title,  is  regarded  as  in  constructive 
possession  of  the  whole  tract,  as  against  the  owner  who  is  not 
in  possession  of  any  part  thereof. 

§  436.     General  considerations. 

There  were,  even  in  early  times,  numerous  statutes  adopt- 
ed in  England  limiting  the  time  within  which  an  action 
could  be  brought  on  account  of  a  disseisin  of  land,  but  these 
differed  from  the  statutes  of  the  present  day  in  that,  instead 
of  naming  a  certain  number  of  years  before  the  institution 
of  the  action  beyond  which  no  disseisin  could  be  alleged,  they 
named  a  certain  year  back  of  which  the  pleader  could  not  go.-^ 
The  last  statute  which  adopted  this  method  of  fixing  the 
period  of  limitation  was  St.  Westminster  I.  c.  39,^  which 
forbade  the  seisin  of  an  ancestor  to  be  alleged  in  a  writ  of 
right  prior  to  the  beginning  of  the  reign  of  Richard  I.  (A.  D. 
1189),  and  for  other  writs  fixed  the  year  1217.  Thus,  un- 
der this  statute,  at  the  time  of  its  passage,  the  period  of  lim- 
itation for  some  writs  was  fifty-eight  years,  and  this  period 
was  lengthened,  as  time  went  on  without  any  change  in  the 
law,  so  that  it  exceeded  three  hundred  years  when,  by  32 
Hen.  VIII.  c.  2,^  a  change  was  made,  and  the  modern 
method  was  adopted  of  fixing  a  certain  number  of  years  with- 

1  Thus  the  earliest  date  at  which  the  seisin  of  an  ancestor  could 
be  alleged  in  a  writ  of  right  was  the  beginning  of  the  reign  of 
Henry  I.  (A.  D.  1100),  until  this  was  changed  by  the  Statute  of 
Merton  to  the  beginning  of  the  reign  of  Henry  II.  (A.  D.  1154). 
Other  dates  were  fixed  for  other  writs. 

2  3  Edw.  I.    (A.  D.  127.5). 

3  A.  D.  1540.  The  disadvantages  of  the  long  period  of  limitation 
was,  however,  to  a  great  extent  avoided  by  the  system  of  levying 
fines.     See  Lightwood,  Possession  of  Land,  156. 

(996) 


Ch.   23]  ADVERSE  POSSESSION  OF  LAND.  {^   435 

in  which  the  action  must  be  brought.  This  last  statute,  how- 
ever, applied  only  to  the  old  real  actions,  and,  the  action  of 
ejectment  having  to  a  great  extent  taken  their  place,  St.  21  Jac. 
I.  c.  16,*  was  passed,  which  provided  that  no  person  should 
thereafter  make  any  entry  into  any  lands,  tenements,  or  here- 
ditaments but  within  twenty  years  next  after  his  or  their  right 
or  title  shall  have  accrued.  This  statute,  while  not  in  terms 
applying  to  the  action  of  ejectment,  did  so  in  effect  by  bar- 
ring the  right  of  entry  on  which  the  action  depended.  This 
statute  of  James  I.  is  that  on  which  the  statutes  in  this 
country  are  more  or  less  modeled.  It  has  been  superseded 
in  England  by  later  statutes,  which  tend  to  bar  an  action  to 
recover  land  after  the  statutory  period  has  elapsed  without 
reference  to  the  character  of  the  possession  of  the  defendant 
in  the  action.^  In  that  country  the  problem  is  much  simpli- 
fied, however,  by  the  absence  of  wild  and  unsettled  lands. 
In  this  country,  many  perplexing  and  difficult  questions  have 
arisen  under  the  statutes  as  to  the  character  of  the  possession 
of  the  land  which  one  must  have  for  the  statutory  period  in 
order  that  the  rights  of  the  original  owner  may  be  barred. 
A  possession  for  the  statutory  period  which  is  sufficient  to  bar 
an  action  to  recover  the  land  is  known  as  "adverse  posses- 
sion," and  one  who  thus  acquires  rights  in  the  land  as  against 
the  former  owner  is  said  to  acquire  title  by  "adverse  posses- 
sion." 

While  occasionally  the  state  statutes  may  expressly  pro- 
vide that  a  failure  to  re-enter  or  bring  an  action  to  recover 
the  land  within  the  statutory  period  shall  operate  to  transfer 
the  title  to  the  person  in  possession,  they  almost  invariably 
in  terms  bar  the  remedy  merely.  They  have,  however,  with 
but  few,  if  any,  exceptions,  been  construed  as  operating  to 

4  A.  D.  1623. 

6  3  &  4  Wm.  IV.  c.  27;  87  &  38  Vict.  c.  57,— "Real  Property  Limita- 
tion Acts"  of  1833  and  1874. 

(997) 


§   437  REAL  PROPERTY.  [Ch.   23 

transfer  the  title  to  the  wrongful  possessor,  enabling  him  to 
assert  his  ownership  in  an  action  of  ejectment  or  otherwise 
against  the  whole  world,*'  inclnding  the  original  owner/  and 
as  rendering  necessary  a  legal  conveyance  in  order  to  revest 
the  ownership  in  the  latter,  after  the  lapse  of  the  statutory 
period.^ 

The  adverse  possession  which  is  required  in  order  to  divest 
the  title  of  the  true  owner,  under  the  construction  placed 
upon  the  Statute  of  James  as  well  as  upon  the  state  stat- 
utes, corresponds  in  a  general  way  to  disseisin  at  the  com- 
mon law.  It  may,  however,  occasionally  exist  under  cir- 
cumstances which  would  not  have  given  rise  to  a  disseisin, 
and  the  use  of  the  latter  term,  as  well  as  of  the  correlative 
expressions  "disseisor"  and  "disseisee,"  while  permissible 
and  highly  convenient,  is  not  always  absolutely  accurate  ac- 
cording to  the  old  law. 

§  437.     Duration  and  continuity  of  possession. 

The  Statute  of  James  barred  the  right  of  entry  at  the 
end  of  twenty  years  after  the  right  or  title  accrued,  and  this 

6  Baker  v.  Oakwood,  123  N.  Y.  16,  Finch's  Cas.  1053;  Hughes  v. 
Graves,  39  Vt.  359,  3  Gray's  Cas.  40;  Harpending  v.  Reformed  Prot- 
estant Dutch  Church  of  New  York  City,  16  Pet.  (U.  S.)  455;  Sher- 
man V.  Kane,  86  N.  Y.  57;  Armstrong  v.  Risteau's  Lessee,  5  Md.  256, 
59  Am.  Dec.  115;  Schock  v.  Falls  City,  31  Neb.  599;  Jacks  v.  Chaffin, 
34  Ark.  534;  Mitchell  v.  Campbell,  19  Or.  198;  Gulf,  C.  &  S.  F.  Ry. 
Co.  V.  Cusenberry,  86  Tex.  529;  McDuffee  v.  Sinnott,  119  111.  449; 
Sutton  V.  Pollard,  96  Ky.  640;  Way  v.  Hooton,  156  Pa.  St.  8. 

T  Sharon  v.  Tucker,  144  U.  S.  533;  Armstrong  v.  Risteau's  Lessee, 
5  Md.  256,  59  Am.  Dec.  115;  Cannon  v.  Stockmon,  36  Cal.  585,  95 
Am.  Dec.  205;  Barnes  v.  Light,  116  N.  Y.  34;  Hal]  v.  Hall,  27  W. 
Va.  468,  480. 

8  Inhabitants  of  School  Dist.  No.  4,  in  Winthrop,  v.  Benson,  31  Me. 
381,  3  Gray's  Cas.  38,  Finch's  Cas.  1059;  Riggs  v.  Riley,  113  Ind. 
208;  Allen  v.  Mansfield,  82  Mo.  688;  Bell  v.  Adams,  81  N.  C.  118; 
Bruce  v.  Washington,  80  Tex.  368;  Todd  v.  Kauffman,  8  Mackey  (D. 
C.)  304. 
(998) 


Ch.    23]  ADVERSE   POSSESSION  OF  LAND.  jj   4.^7 

period  has  been  adopted  in  a  nmnbcr  of  the  states  of  this 
eoimtrv,  while  in  a  few  a  greater  period  is  required  to  bar 
the  right  of  action,  and  in  some  a  much  less  period.'* 

In  a  number  of  the  states  there  are  statutory  provisions 
for  what  are  known  as  "short  limitations,"  in  effect  consider- 
ably reducing  the  ordinary  period  in  cases  when  the  adverse 
possession  is  by  one  claiming  under  "color  of  title," — that 
is,  by  one  who  has,  in  taking  possession,  acted  on  the  strength 
of  a  c(^veyance  or  judicial  decree  purporting  to  vest  the  title 
in  him,  but  which,  for  some  reason,  fails  to  do  so.  In  some 
states,  such  a  provision  exists  in  favor  of  one  occupying  un- 
der a  particular  class  of  conveyance  or  decree,  as  when  it  is 
provided  that  a  junior  patent  from  the  state  under  which 
one  occupies  cannot  be  attacked  after  a  certain  number  of 
years,  and  such  a  provision  is  frequently  found  in  favor  of  a 
purchaser  at  certain  classes  of  judicial  sales,  or  at  tax  sales. 
The  possession  under  such  a  "short  limitation"  act  is  usually 
required  to  be  accompanied  by  the  payment  of  taxes  on  the 
land  by  the  person  in  possession.^ "^ 

The  adverse  possession  must  continue  without  interrup- 
tion for  the  statutory  period,  and,  if  an  interruption  occurs, 
and  possession  is  thereafter  resumed,  the  limitation  period 
commences  to  run  only  from  the  time  of  such  resumption.^ ^ 
The  interruption  of  continuity  may  result  from  the  cessation 
by  the  person  in  possession  of  his  exercise  of  acts  of  posses- 
sion or  ownership  over  the  land,'^  but  the  mere  fact  that 

9  See  Wood,  Limitations,  §  254. 

10  The  "short  limitation"  acts  of  the  several  states  are  well  sum- 
marized in  2  Dembitz,  Land  Titles,  §  18G. 

11  Steeple  v.  Downing,  60  Ind.  478;  Ross  v.  Goodwin,  88  Ala.  390; 
Armstrong  v.  Risteau's  Lessee,  5  Md.  256,  59  Am.  Dec.  115;  Old 
South  Soc.  V.  Wainwright,  156  Mass.  115;  Bliss  v.  Johnson,  94  N. 
Y.  235. 

12  Downing  v.  Mayes,  153  111.  330,  46  Am.  St.  Rep.  896;  Stephens 
V.  Leach,  19  Pa.   S_t.  262;    Nixon  v.  Porter,  38  Miss.  401;    Sharp  v. 

(909) 


J^   438  REAL  PROPERTY.  [Ch.    23 

the  acts  of  possession  are  not  continuons,  or  that  the  owner 
does  not  continue  in  actual  occupancy,  does  not  necessarily 
show  an  interruption  of  the  possession,  this  depending  on  the 
character  of  the  acts  necessary  to  constitute  actual  possession, 
and  the  circumstances  of  the  particular  case.^^ 

A  recognition  of  the  true  owner's  right  to  ix)Ssession  is 
sufficient  to  break  the  continuity  of  the  possession.^ ^  The  ad- 
verse possession  is  also  interrupted  if  the  owner  enters  on  the 
land,  provided  this  is  dctoe  openly  and  under  claim  of 'right, 
with  a  clearly  asserted  purpose  of  taking  possession,^  ^  as  it 
is  by  the  enforcement  of  or  submission  to  a  judgment  in  an 
action  of  ejectment  brought  by  the  owner,  though  a  mere  re- 
covery in  ejectment,  without  any  action  with  reference  there- 
to, does  not  have  such  an  effect.-'® 

§  438.     Tacking. 

The  question  quite  frequently  arises  whether  one  who  has 
not  been  in  possession  of  the  land  for  the  statutory  period 

Johnson,  22  Ark.  79;  Barrell  y.  Title  Guarantee  &  Trust  Co.,  27 
Or.  79. 

13  Hughs  V.  Pickering,  14  Pa.  St.  297,  Finch's  Gas.  1040;  Downing 
V.  Mayes,  153  111.  330,  46  Am.  St.  Rep.  896;  Ford  v.  Wilson,  35  Miss. 
490,  72  Am.  Dec.  137;  Grispen  v.  Hannavan,  50  Mo.  536. 

14  Nebraska  Ry.  Co.  v.  Culyer,  35  Neb.  143;  City  of  St.  Paul  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  63  Minn.  330;  Lovell  v.  Frost,  44  Cal. 
471;  Litchfield  v.  Sewell,  97  Iowa,  247;  Ingersoll  v.  Lewis,  11  Pa.  St. 
212,  51  Am.  Dec.  536;  Williams  v.  Scott,  122  N.  C.  545;  Warren 
V.  Bowdran,  156  Mass.  280. 

15  Burrows  v.  Gallup,  32  Conn.  493,  87  Am.  Dec.  186;  Bowen  v. 
Guild,  130  Mass.  121,  3  Gray's  Cas.  86;  Altemas  y.  Campbell,  9  Watts 
(Pa.)  28,  34  Am.  Dec.  494;  Musser-Sauntry  Land,  Logging  &  Mfg. 
Co.  V.  Tozer,  56  Minn.  443;  Evitts  v.  Roth,  61  Tex.  81;  Campbell  v. 
Wallace,  12  N.  H.  362,  37  Am.  Dec.  219. 

16  Moore  y.  Greene,  19  How.  (U.  S.)  69;  Smith  y.  Hornback,  4 
Litt.  (Ky.)  232,  14  Am.  Dec.  122;  Bishop  y.  Truett,  85  Ala.  376; 
McGrath  v.  Wallace,  85  Cal.  622;  Gould  y.  Carr,  33  Fla.  523;  Forbes 
V.  Caldwell,  39  Kan.  14;  Mabary  y.  Dollarliide,  98  Mo.  198,  14  Am. 
St.  Rep.  639. 

(lOOOj 


Ch.  23]  ADVERSE   POSSESSION  OF  LAND.  §   43S 

may  add  or  "tack"  to  bis  possession  that  of  anothor  person, 
previously  in  possession,  in  order  to  make  up  such  period,  or, 
in  other  words,  whether  recovery  of  the  land  by  the  original 
owner  is  prevented  by  adverse  possession  for  the  statutory 
period,  irrespective  of  whether  this  adverse  possession  was 
by  one  person  for  the  whole  period,  or  by  different  persons 
in  succession.  That  an  heir  is  entitled  to  tack  his  ancestor's 
possession  to  his  own  is  generally  conceded,^ '^  and  the  great 
weight  of  authority  is  to  the  effect  that  one  in  adverse  pos- 
sion  can  transfer  his  rights,  such  as  they  are,  to  another,  by 
a  conveyance  of  the  land,  or  otherwise,  so  as  to  enable  such 
other  to  tack  his  predecessor's  possession  to  his  own,^^  though 
there  are  a  few  decisions  to  the  effect  that  the  disseisor  has 
no  rights  thus  capable  of  voluntary  transfer.^ ^  Even  a  pur- 
chaser at  execution  sale  has  been  allowed  to  tack  the  posses- 
sion of  the  execution  defendant.  ^^  A  merely  oral  transfer 
of  the  previous  predecessor's  rights  is  usually  regarded  as 
sufficient.-^      It  is  necessary,  however,  that  there  be  a  trans- 

1- McNeely  v.  Langan,  22  Ohio  St.  32,  3  Gray's  Gas.  124;  Overfield 
V.  Ghristie,  7  Serg.  &  R.  (Pa.)  173,  3  Gray's  Gas.  117;  Williams  v. 
McAliley,  Gheves  (S.  G.)  200;  Sawyer  v.  Kendall,  10  Gush.  (Mass.) 
241,  3  Gray's  Gas.  121;  Fugate  v.  Pierce,  49  Mo.  441;  Rowland  v. 
Williams,  23  Or.  515. 

18  Overfield  v.  Ghristie,  7  Serg.  &  R.  (Pa.)  173,  3  Gray's  Gas.  117; 
McNeely  v.  Langan,  22  Ohio  St.  32,  3  Gray's  Gas.  124;  Gage  v.  Gage, 
30  N.  H.  420;  Frost  v.  Courtis,  172  Mass.  401.  And  see  cases  cited 
post,  note  21. 

19  Potts  V.  Gilbert,  3  Wash.  C.  G.  475,  Fed.  Gas.  No.  11,347,  3  Gray's 
Gas.  115;  King  v.  Smith,  Rice  (S.  G.)  10;  Garrett  v.  Weinberg, 
48  S.  G.  28. 

20  Hall  V.  Hall,  27  W.  Va.  468;  Miller  v.  Bumgardner.  109  N.  G. 
412.     See  Doe  d.  Hester  v.  Goats,  22  Ga.  56. 

21  Hughs  V.  Pickering,  14  Pa.  St.  297,  Finch's  Gas.  1040;  McNeely 
V.  Langan,  22  Ohio  St.  32,  3  Gray's  Gas.  125;  Faloon  v.  Simshauser, 
130  111.  649;  Davock  v.  Nealon,  58  N.J.  Law.  21;  Grispen  v.  Hanna- 
van,  50  Mo.  536;  Sherin  v.  Brackett,  36  Minn.  152;  Com.  v.  Gib- 
son, 85  Ky.  666;  Illinois  Steel  Go.  v.  Budzisz,  106  Wis.  499;  Row- 
land V.  Williams,  23  Or.  515.     But  see  Sawyer  v.  Kendall,  10  Gush. 

(1001) 


§   438  REAL  PROPERTY.  |Ch.   23 

fer  or  some  sort  of  contractual  connection  between  the  re- 
spective possessions  in  order  tliat  they  may  be  tacked,  and 
one  who  disseises  another  who  is  already  in  adverse  posses- 
sion cannot  tack  the  former's  possession  to  his  own.-^  There 
can,  of  course,  be  no  tacking  if  the  possession  of  one  person 
does  not  immediately  follow  upon  that  of  the  other,  since  in 
that  case  the  element  of  continuity  is  absent.^^ 

It  has  been  held  that  one  claiming  as  remainderman  under 
a  will  may  tack  to  his  own  possession  the  possession  of  the 
testator  and  the  life  tenant  under  the  wall,  since  the  posses- 
sion of  each  is  under  the  same  title.^"'  The  possession  of  the 
widow  of  the  owner  has  been  regarded  as  not  so  connected 
with  that  of  the  latter  as  to  entitle  her  to  tack  his  possession 
to  her  own  after  his  death.^^  Under  statutes,  however, 
by  which  she  is  given  certain  rights  of  possession  even  before 
the  assignment  of  dower,  their  possessions  may  be  tacked. ^^ 

(Mass.)  241,  3  Gray's  Cas.  121;  Ward  v.  Bartholomew,  6  Pick. 
(Mass.)  409. 

22  Sherin  v.  Brackett,  36  Minn.  152,  Finch's  Cas.  1007;  Sawyer 
V.  Kendall,  10  Cush.  (Mass.)  241,  3  Gray's  Cas.  121;  Lucy  v.  Tennes- 
see &  C.  R.  Co.,  92  Ala.  246;  Locke  v.  Whitney,  63  N.  H.  ^97;  Smith 
V.  Chapin,  31  Conn.  531;  City  &  County  of  San  Francisco  v.  Fulde, 
37  Cal.  349,  99  Am.  Dec.  278;  Crispen  v.  Hannavan,  50  Mo.  536; 
Heflin  v.  Burns,  70  Tex.  347;  Jarrett  v.  Stevens,  36  W.  Va.  445;  Low 
V.  Schaffer,  24  Or.  239;  Erck  v.  Chuch,  87'  Tenn.  580.  But  see 
Scales  V.  Cockrill,  3  Head  (Tenn.)  432;  Davis  v.  McArthur,  78  N.  C. 
357. 

23  See  Winslow  v.  Newell,  19  Vt.  164;  Kilburn  v.  Adams,  7  Mete. 
(Mass.)  33,  39  Am.  Dec.  754;  Louisville  &  N.  R.  Co.  v.  Philyaw,  88 
Ala.  264;  Warren  v.  Fredericks,  76  Tex.  647;  Turner  v.  Baker,  64 
Mo.  218,  27  Am.  Rep.  226.  See.  also,  Hughs  v.  Pickering,  14  Pa.  St. 
297,  Finch's  Cas.  1040. 

24  Haynes  v.  Boardman,  119  Mass.  414,  Finch's  Cas.  1042.  Contra, 
Austin  V.  Rutland  R.  Co.,  45  Vt.  215. 

25  Sawyer  v.  Kendall,  10  Cush.  (Mass.)  241,  3  Gray's  Cas.  121; 
Robinson  v.  Allison,  124  Ala.  325.  But  see  Mills'  Heirs  v.  Bodley, 
4  T.  B.  Mon.  (Ky.)  248;  Hickman  v.  Link,  97  Mo.  482. 

-•'.  McEntire  v.  Brown,  28  Ind.  347. 
(1002) 


Ch.  23 1  ADVERSE  POSSESSION  OF   LAND.  v^   4.^) 

§  439.     Personal  disabilities. 

The  statute  of  limitations  iiivariablv  extends  the  period 
for  bringing  an  action  to  recover  land  in  case  the  plaintiff 
was  under  disability  at  the  time  the  right  of  action  accrued. 
The  Statute  of  James  I.  contained  such  an  exception  in 
favor  of  (1)  persons  under  twenty-one  years,  (2)  femes 
covert,  (3)  persons  non  compos  mentis,  (4)  persons  impris- 
oned, and  (5)  persons  "beyond  the  seas." 

The  saving  clause  in  favor  of  infants  is  retained  in  most, 
if  not  all,  of  the  state  statutes,  though  the  time  at  which  in- 
fancy ceases  differs  in  different  states.  The  saving  in  favor 
of  married  women  also  still  exists  in  the  majority  of  states, 
though  in  some  it  has  been  expressly  abolished,  in  view  of 
legislation  enabling  a  married  woman  to  sue  alone.  The 
saving  in  favor  of  persons  non  compos  mentis  is  usually  re- 
tained, and  those  in  favor  of  persons  imprisoned  and  of  per- 
sons "beyond  the  seas,"  or,  what  is  regarded  as  equivalent, 
"absent  from  the  United  States,"  are  also  frequently  to  be 
found.  In  some  states,  moreover,  there  are  exceptions  in 
favor  of  alien  enemies.  The  statutes  differ  greatly  as  to  the 
extent  of  time  after  the  removal  of  the  disability  within 
which  an  action  may  be  brought,  some  naming  the  full  period 
of  limitation,  and  others  naming  a  much  shorter  period.-'' 

These  exceptions  in  statutes  limiting  the  time  for  the  re- 
covery of  land,  as  well  as  in  those  applicable  to  personal  ac- 
tions only,  are  usually  construed  as  applicable  only  to  a  dis- 
ability existing  at  the  time  of  the  accrual  of  the  right  of  ac- 
tion, and  the  fact  that  a  disability  in  the  owner  to  sue  arises 
after  such  accrual  does  not  affect  the  running  of  the  statute.^^ 

27  The  statutory  provisions  as  to  disabilities  are  summarized  in 
Wood,  Limitations  (3d  Ed.)   §  237. 

28  Demarest  v.  Wynkoop,  3  Johns.  Ch.  (N.  Y.)  129.  8  Am.  Dec.  476, 
Finch's  Cas.  1047;  Doe  d.  Caldwell  v.  Thorp,  8  Ala.  253;  Currier 
V.  Gale,  3  Allen  (Mass.)  328;  Wellborn  v.  Weaver,  17  Ga.  267,  63 
Am.   Dec.  235. 

(1003) 


^    439  REAL  PROPERTY.  [Ch.   23 

Accordingly,  if  the  right  of  action  has  once  existed  in  favor 
of  a  person,  the  fact  that  it  passes  by  descent  to  one  under  the 
disability  of  infancy  does  not  extend  the  time  for  bringing 
suit.^^  And  if  a  disability  existing  at  the  time  of  the  dis- 
seisin or  other  accrual  of  the  cause  of  action  is  once  removed, 
the  fact  that  a  subsequent  disability  intervenes,  as  when  an 
infant,  after  arriving  at  age,  marries,  such  subsequent  dis- 
ability does  not  operate  in  her  f  avor.^*^ 

If  the  owner  of  the  land  is  under  two  or  more  disabili- 
ties at  the  time  of  the  accrual  of  the  cause  of  action,  he  may 
take  advantage  of  both,  or,  rather,  of  the  one  which  endures 
the  longest  ;^^  but  if  only  one  disability  exists  at  that  time, 
he  can  take  advantage  of  that  alone,  and  the  fact  that,  before 
such  disability  terminates,  another  intervenes,  as  when  an 
infant  feme  sole  marries,  does  not  extend  the  time  for  the 
recovery  of  the  land,  or,  as  it  is  frequently  stated,  disabili- 
ties cannot  be  "tacked."^^  Likewise,  the  disabilities  of  dif- 
ferent persons  cannot  be  tacked,  in  order  to  make  up  the 

29  Harris  v.  McGovern,  99  U.  S.  161,  affirming  2  Sawy.  515,  Fed. 
Cas.  No.  6,125;  Doyle  v.  Wade,  23  Fla.  90,  11  Am.  St.  Rep.  334; 
Burdett  v.  May,  100  Mo.  13;  Ray  v.  Thurman's  Ex'r,  13  Ky.  Law 
Rep.  3,  15  S.  W.  1116;  Lynch  v.  Cox,  23  Pa.  St.  265;  Jackson  v. 
Moore,  13  Johns.  (N.  Y.)  513,  7  Am.  Dec.  398;  Gates  v.  Beckworth, 
112  Ala.  356;  Castro  v.  Geil,  110  Cal.  292,  52  Am.  St.  Rep.  84.  Contra, 
Everett's  Ex'rs  v.  Whitfield's  Adm'rs,  27  Ga.  133.  ' 

soGherson  v.  Brooks  (Ark.)  5  S.  W.  329;  Keil  v.  Healey,  84  111. 
104,  25  Am.  Rep.  434. 

31  Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74,  15  Am.  Dec.  433;  Butler 
V.  Howe,  13  Me.  397;  North  v.  James,  61  Miss.  761;  Keeton's  Heirs 
V.  Keeton's  Adm'r,  20  Mo.  530. 

32Bunce  v.  Wolcott,  2  Conn.  27,  3  Gray's  Cas.  104;  Demarest  v, 
Wynkoop,  3  Johns.  Ch.  (N.  Y.)  129,  8  Am.  Dec.  476,  Finch's  Cas. 
1047;  Duckett  v.  Crider,  11  B.  Mon.  (Ky.)  188;  White  v.  Clawson, 
79  Ind.  188;  Cozzens  v.  Farnan,  30  Ohio  St.  491,  27  Am.  Rep.  470; 
McFarland  v.  Stone,  17  Vt.  165,  44  Am.  Dec.  325;  Nutter  v.  De  Roche- 
mont,  46  N.  H.  80;  Thompson  v.  Smith,  7  Serg.  &  R.  (Pa.)  209. 
Contra,  Miller  v.  Bumgardner,  109  N.  C.  412. 
(1004) 


Ch.   23]  ADVERSE  POSSESSION  OF  LAND.  j;   440 

statutory  period ;  and  so,  if  the  owner  is  under  a  disability 
from  the  time  of  the  accrual  of  the  disability  till  his  death, 
his  infant  heir  cannot  tack  his  own  disability  to  that  of  his 
ancestor,  in  order  to  extend  the  statutory  period.^^ 

§  440.     Exception  in  favor  of  the  sovereign. 

According  to  the  maxim  Nullum  tetnpus  occurrit  regi,  the 
adverse  possession  of  land  belonging  either  to  the  United 
States  or  a  state  cannot,  unless  the  statute  otherwise  provides, 
divest  the  government  title.^^  The  statutory  limitation  be- 
gins, however,  to  run  in  favor  of  one  in  hostile  possession  of 
public  land  so  soon  as  its  ownership  passes  to  a  grantee  of 
the  government.  In  determining  the  time  at  which  the 
private  ownership  begins  for  this  purpose,  the  decisions  are 
not  in  accord,  some  holding  that  it  does  not  begin  until  the 
issue  of  the  patent,^^  w^hile  others  consider  it  as  beginning 
so  soon  as,  by  payment  for  the  land,  the  individual  has  be- 
come entitled  to  a  patent.^^ 

The  question  whether  the  statute  runs  against  a  municipal 
or  quasi  municipal  corporation,  so  that  adverse  possession  of 
its  land  for  the  statutory  period  will  bar  recovery  by  the  mu- 

33  Dowell  V.  Tucker,  46  Ark.  438;  Griswold  v.  Butler,  3  Conn.  227; 
Pirn  V.  City  of  St.  Louis,  122  Mo.  654;  Henry  v.  Carson,  59  Pa.  St. 
297;  Jackson  v.  Houston,  84  Tex.  622. 

34  Gibson  v.  Chouteau,  13  Wall.  (U.  S.)  92;  Wagnon  v.  Fairbanks, 
105  Ala.  527;  Munshower  v.  Patten,  10  Serg.  &  R.  (Pa.)  334,  13  Am. 
Dec.  678;  Doran  v.  Central  Pac.  R.  Co.,  24  Cal.  245;  Twining  v. 
City  of  Burlington,  68  Iowa,  284;  Hall  v.  Gittings'  Lessee,  2  Har. 
&  J.  (Md.)  112;  Hall  v.  Webb,  21  W.  Va.  318.  See,  as  to  statutes 
on  the  subject,  2  Dembitz,  Land  Titles,  §  179. 

35  Smith  V.  McCorkle,  105  Mo.  135;  Steele  v.  Boley,  7  Utah,  64; 
Stringfellow  v.  Tennessee  Coal,  Iron  &  Railroad  Co.,  117  Ala.  250; 
Mathews  v.  Ferrea,  45  Cal.  51;  Chiles  v.  Calk,  4  Bibb  (Ky.)   554. 

36  Patten  v.  Scott,  118  Pa.  St.  115,  4  Am.  St.  Rep.  576;  Udell  v. 
Peak,  70  Tex.  547;  Nichols  v.  Council,  51  Ark.  26,  14  Am.  St. 
Rep.  20. 

(1005) 


§441  REAL  PROPERTY.  [Ch.    23 

nicipality,  has  been  the  subject  of  iiiiieh  discussion,  and  the 
decisions  are  not  in  accord  on  the  question.  In  the  majority 
of  the  states,  land  owned  bj  a  municipality,  and  devoted  to 
uses  of  a  purely  public  character,  as  when  the  "fee"  of  a  street 
or  park  is  vested  in  the  municipality,  or  land  is  conveyed  to 
the  municipality  for  a  public  building,  hospital,  or  the  like, 
the  municipality  is  regarded  as  merely  the  agent  of  the  state, 
and  its  rights  cannot  be  divested  by  adverse  possession,^^ 
though  in  a  number  of  states  a  different  view  obtains.^*  But 
even  in  the  former  class  of  states  there  is  a  tendency  to  dis- 
tinguish between  land  devoted  to  public  use  and  that  which 
is  held  by  the  municipality  in  a  "private  capacity,"  and  over 
which  it  has  the  power  of  alienation,  the  latter  being  re- 
garded as  subject  to  the  bar  of  the  statute.''^ 

§  441.     Actual  and  visible  possession. 

In  order  to  confer  title  by  adverse  possession,  it  is  neces- 
sary that  there  be  an  actual  entry  on  the  land,  and  the  mere 
fact  that  one  has  what  purports  to  be  a  conveyance  of  the 
land,  or  other  paper  title,  is  never  sufficient.^"     ISTor  is  an 

"T  Almy  V.  Church,  18  R.  I.  182;  Cheek  v.  City  of  Aurora,  92  Ind. 
107;  Webb  v.  City  of  Demopolis,  95  Ala.  116;  Kittaning  Academy  v. 
Brown,  41  Pa.  St.  269;  Board  of  Education  of  City  and  County  of 
San  Francisco  v.  Martin,  92  Cal.  209;  Taraldson  v.  Incorporated 
Town  of  Lime  Springs,  92  Iowa,  187;  Ralston  v.  Town  of  Weston, 
46  W.  Va.  544;  City  of  Sullivan  v.  Tichenor,  179  111.  97.  See  2  Dil- 
lon, Mun.  Corp.  (4th  Ed.)   §§  667-675. 

38  Oxford  Township  v.  Columbia,  38  Ohio  St.  87;  City  of  Coving- 
ton V.  McNickle's  Heirs,  18  B.  Mon.  (Ky.)  262;  City  of  Fort  Smith 
V.  McKibbin,  41  Ark.  45,  48  Am.  Rep.  19;  Village  of  Wayzata  v.  Great 
Northern  Ry.  Co.,  50  Minn.  438. 

30  See  Simplot  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (C.  C.)  16  Fed.  350; 
Ames  V.  City  of  San  Diego,  101  Cal.  390;  City  of  Chicago  v.  Middle- 
brooke,  143  111.  265;  City  of  Bedford  v.  Willard.  133  Ind.  562;  2  Dil- 
lon. Mun.  Corp.   (4th  Ed.)    675. 

4"  Thayer  v.  McLellan,  23  Me.  417;  Walker  v.  Hughes,  90  Ga.  52; 
Christy    v.    Spring  Valley   Water   Works.    97    Cal.    21;    Lipscomb   v. 

(100(3) 


Ch.   23  J  ADVERSE  POSSESSION  OF   LAND.  §   441 

entry  on  the  laud  suiticieiit,  unless  it  is  followed  bj  such  acts 
of  dominion  over  the  laud  as  will  coustittite  what  the  law 
regards  as  actual  possession  of  the  laud.  What  is  sufficient  to 
constitute  this  acttial  possession  depends  upon  the  character 
of  the  land  and  all  the  circumstances  of  the  case.  It  involv- 
es, as  a  general  rule,  the  d(uug  of  acts  of  doiuiuiou  on  the 
land,  sufficiently  pronounced  and  continuous  in  character  to 
charge  the  owner  with  notice  that  an  adverse  claim  to  the 
land  is  asserted.  Continued  residence  on  the  land  is  no 
doubt  sufficient  to  show  actual  possession  ;**^  and  cultivation 
or  otherwise  improving  the  land  has  been  regarded  as  suffi- 
cient in  particular  cases,"*-  and  the  erection  of  a  fence  around 
the  land  may,  in  some  cases,  be  sufficient.^^  On  the  other 
hand,  a  merely  occasional  and  sporadic  use  of  the  land,  an 
occasional  entrv^  to  cut  timber  or  grass,  or  to  appropriate 
other  products  or  profits  of  the  land,  does  not  constitute  ac- 
tual possession.'*'*  The  question  whether,  in  any  particular 
case,  there  was  an  actual  possession  of  the  land,  is  ustially 
one  of  fact  for  the  jury  under  the  instructions  of  the  court. ^^ 

McClellan.  72  Ala.  151;  White  v.  Burnley,  20  How.  (U.  S.)  235; 
Ward  V.  Cochran,  150  U.  S.  597,  Finch's  Cas.  1013. 

41  Susquehanna  &  W.  V.  Railroad  &  Coal  Co.  v.  Quick,  68  Pa.  St. 
189;  Alabama  State  Land  Co.  v.  Kyle,  99  Ala.  474.  Under  some  of 
the  "short  limitation"  statutes,  actual  residence  is  necessary. 
Stumpf  V.  Osterhage,  94  111.  115;  Chiles  v.  Jones,  4  Dana  (Ky.)  479. 

4- Butler  V.  Drake,  62  Minn.  229;  Susquehanna  &  W.  V.  Railroad 
&  Coal  Co.  V.  Quick,  68  Pa.  St.  189;  Congdon  v.  Morgan,  14  S.  C. 
587;  Crapo  v.  Cameron,  61  Iowa,  447;  Finn  v.  Wisconsin  River  Land 
Co.,  72  Wis.  546;   Johns  v.  McKibben,  156  ill.  71. 

4"  Moore  v.  McCown  (Tex.  Civ.  App.)  20  S.  W.  1112;  Brumagim 
V.  Bradshaw.  39  Cal.  24,  50. 

4*Bazille  v.  Murray,  40  Minn.  48;  Denham  v.  Holeman.  26  Ga. 
182.  71  Am.  Dec.  198;  Parker  v.  Wallis.  60  Md.  15.  45  Am.  Rep. 
703:  Cornelius  v.  Giberson,  25  N.  J.  Law,  1;  Williams  v.  Wallace, 
78  N.  C.  354;  Wheeler  v.  Winn,  53  Pa.  St.  122,  91  Am.  Dec.  186; 
Wilson  V.  Blake,  53  Vt.  305;   Parker  v.  Parker,  1  Allen   (Mass.)  245. 

t'' Anderson  v.  Bock,  15  How.   (U.  S.)    323;   Truesdale  v.  Ford.  37 

(1007) 


§   442  REAL  PROPERTY.  [Ch.  23 

The  possession  must,  it  is  said,  be  "visible"  and  ''notori- 
ous," so  that  the  owner  may  have  an  opportunity  to  learn  of 
the  adverse  claim,  and  to  protect  his  rights.^^  Actual  knowl- 
edge of  the  possession  on  the  part  of  the  true  owner  is  not, 
however,  necessary,  it  being  sufficient  that  he  could  have 
learned  thereof  by  going  upon  the  land  and  making  inquiry.^ ^ 
And  since  the  requisites  of  "actual"  possession  are  usually 
defined  with  reference  to  the  sufficiency  of  such  acts  to  affect 
the  owner  with  notice  of  the  adverse  claim,  it  would  seem 
somewhat  questionable  whether  there  can  be  any  "actual" 
possession  which  is  not  at  the  same  time  "visible"  and  "no- 
torious." 

§  442.     Exclusiveness  of  possession. 

In  order  that  one  may  acquire  rights  in  land  by  possession 
for  the  statutory  period,  it  is  necessary  that  his  possession 
be  exclusive.^ ^  The  possession  must  be  exclusive  of  the  own- 
er, since,  if  the  latter  is  also  in  possession,  the  possession  of 
another  must  be  regarded  as  under  license  from  him,  or  as 
merely  a  trespass,^^  and  it  must  also  be  exclusive  of  third 

111.  210;    Pendill  v.   Marquette   County   Agricultural   Soc,   95   Mich. 
491;  Martin  v.  Rector,  30  Hun  (N.  Y.)  138. 

leMcClellan  v.  Kellogg,  17  111.  498,  Finch's  Cas.  1016;  De  Frieze 
V.  Quint,  94  Cal.  653,  28  Am.  St.  Rep.  151,  note;  Beatty  v.  Mason, 
30  Md.  409;  Thompson  v.  Pioche,  44  Cal.  508;  King  v.  Wells,  94 
N.  C.  344;  Fugate  v.  Pierce,  49  Mo.  441;  Little  v.  Downing,  37  N. 
H.  355;  Grimes  v.  Ragland,  28  Ga.  123,  Finch's  Cas.  1029. 

4T  Village  of  Glencoe  v.  Wadsworth,  48  Minn.  402;  School  Dist. 
No.  8  of  Thompson  v.  Lynch,  33  Conn.  330;  Key  v.  Jennings,  66 
Mo.  367;  Samuels  v.  Borrowscale,  104  Mass.  207;  Warfield  v.  Lindell, 
38  Mo.  561,  90  Am.  Dec.  443;  Alden  v.  Gilmore,  13  Me.  178. 

48  Ward  V.  Cochran,  150  U.  S.  597,  Finch's  Cas.  1013;  Stump  v, 
Henry,  6  Md.  201,  61  Am.  Dec.  301;  Goodson  v.  Brothers,  111  Ala. 
589;  Collins  v.  Lynch,  167  Pa.  St.  635;  CahilJ  v.  Palmer,  45  N.  Y. 
478. 

«  Brown  v.  Chicago,  B.  &  K.  C.  Ry.  Co.,  101  Mo.  484;   Larwell  v. 
Stevens   (C.  C.)  12  Fed.  559;   Bellis  v.  Bellis,  122  Mass.  414;   Smith 
V.  Hitchcock,  38  Neb.  104;  O'Hara  v.  Richardson,  46  Pa.  St.  385. 
(lOOS) 


Ch.  23J  ADVERSE  POSSESSION  OF  LAND.  §  443 

persons, — that  is,  the  exercise  of  acts  of  possession  by  the 
claimant  is  insufficient  if  he  allows  other  persons  to  do  the 
sanie.°° 

§  443.     Hostile  character  of  possession. 

In  order  that  the  possession  of  one  person  for  the  statutory 
period  may  defeat  the  right  of  the  original  owner  to  recover 
the  land,  it  is  necessary  that  the  possession  be  hostile  to  such 
owner,  under  a  claim  of  right,  and  such  as  to  exclude  any 
recognition  of  the  rights  of  the  true  owner.  There  are 
numerous  legal  relations  which,  from  their  nature,  are  re- 
garded as  raising  a  presumption  that  the  person  in  possession 
is  holding  in  subordination  to,  and  in  recognition  of,  the 
rights  of  another, — a  presumption  which,  as  a  rule,  can  be 
rebutted  only  by  evidence  of  a  distinct  denial  of  the  other's 
rights. 

The  possession  of  a  trustee  under  an  express  trust  is  not 
adverse  to  his  cestui  que  trust, ^'^  nor  is  that  of  an  agent  ad- 
verse to  his  principal.^^  Likewise,  the  possession  of  a  ten- 
ant in  common  is  not  adverse  to  that  of  his  cotenant.^^     In 

50  Bailey  v.  Carleton,  12  N.  H.  9,  37  Am.  Dec.  190;  Gittings  v. 
Moale,  21  Md.  135;  Kneller  v.  Lang,  137  N.  Y.  589;  Burrows  v.  Gallup, 
32  Conn.  493,  87  Am.  Dec.  186. 

51  Meacham  v.  Bunting,  156  111.  586,  47  Am.  St.  Rep.  239;  Dunn 
V.  Wheeler,  86  Me.  238;  Miller  v.  Bingham,  36  N.  C.  423,  36  Am. 
Dec.  58;  Williams  v.  First  Presbyterian  Soc.  in  Cincinnati,  1  Ohio 
St.  478;  Seymour  v.  Freer,  8  Wall.  (U.  S.)  202;  Angell,  Limitations, 
§  468  et  seq. 

52  Baucum  v.  George,  65  Ala.  259;  Martin  v.  Jackson,  27  Pa.  St. 
504.  67  Am.  Dec.  489;  Hoskins  v.  Byler,  53  Ark.  532;  Peabody  v. 
Leach,  18  Wis.  657;  Peabody  v.  Tarbell,  2  Cush.  (Mass.)  226. 

53  Holley  V.  Hawley,  39  Vt.  534,  94  Am.  Dec.  350;  Unger  v.  Mooney, 
63  Cal.  586,  49  Am.  Rep.  100;  Brewer  v.  Keeler,  42  Ark.  289;  Coogler 
V.  Rogers,  25  Fla.  853;  Rust  v.  Rust,  17  W.  Va.  901;  Page  v.  Branch, 
97  N.  C.  97,  2  Am.  St.  Rep.  281;  Oglesby  v.  Hollister,  76  Cal.  136, 
9  Am.  St.  Rep.  177;  Greenhill  v.  Biggs,  85  Ky.  155,  7  Am.  St.  Rep. 
579;  Peden  v.  Gavins,  134  Ind.  494,  39  Am.  St.  Rep.  276. 

(1009) 

Real  Prop.— 64 


§   443  REAL  PROPERTY.  [Ch.  23 

any  case,  however,  though  one  of  these  relations  exist,  the 
person  in  possession  niaj  repudiate  the  relation,  and  claim 
to  hold  in  his  own  right,  in  which  case  the  statute  of  limita- 
tions will  begin  to  run  in  his  favor  as  if  between  strangers.^^ 

The  possession  of  the  grantor  in  a  conveyance  after  the  de- 
livery thereof  is  regarded  as  prima  facie  by  permission  of  the 
grantee,  and  consequently  not  adverse  to  the  latter,  unless 
he,  by  w^ord  or  act,  asserts  a  claim  to  the  premises  in  his  owti 
behalf.  ^^ 

The  possession  of  the  tenant  is  in  subordination  to  the 
rights  of  his  landlord,  and  is  not  adverse  to  the  latter.^^  The 
tenant  may,  however,  disclaim  to  hold  under  the  landlord, 
and,  since  this  gives  the  landlord  the  right  immediately  to 
recover  possession  of  the  land,^'''  the  statute  of  limitations  be- 
gins to  run,  provided  the  disclaimer  is  known  to  the  land- 
lord, or  is  so  open  and  notorious  that  the  landlord's  knowledge 
thereof  may  be  presumed.^'^ 

54  Zeller's  Lessee  v.  Eckert,  4  How.  (U.  S.)  289;  Whiting's  Heirs 
V.  Taylor's  Heirs,  8  Dana  (Ky.)  403;  Congregational  Soc.  &  Church 
in  Newington  v.  Town  of  Newington,  53  N.  H.  595;  Williams  v. 
First  Presbyterian  Soc.  in  Cincinnati,  1  Ohio  St.  478;  Catlin  v. 
Decker,  38  Conn.  262;  Miles  v.  Thorne,  38  Cal.  335,  99  Am.  Dec. 
384.  As  to  the  acts  necessary  to  constitute  an  ouster  of  one  co- 
tenant,  so  as  to  render  the  possession  of  the  other  adverse,  see  ante, 
%  168. 

55  Jay  V.  Whelchel,  78  Ga.  786;  Rowe  v.  Beckett,  30  Ind.  154,  95 
Am.  Dec.  676;  Sellers  v.  Crossan,  52  Kan.  570;  Olwine  v.  Holman,  23 
Pa.  St.  279;  Schwallback  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  69  Wis. 
•292,  2  Am.  St.  Rep.  740.     See  Knight  v.  Knight,  178  111.  553. 

56Willison  V.  Watkins,  3  Pet.  (U.  S.)  43;  Rigg  v.  Cook,  9  111.  336, 
46  Am.  Dec.  462;  Galloway's  Lessee  v.  Ogle,  2  Binn.  (Pa.)  468; 
Pharis  v.  Jones,  122  Mo.  125;  Alabama  State  Land  Co.  v.  Kyle,  99 
Ala.  474;  Doherty  v.  Matsell,  119  N.  Y.  646,  Finch's  Cas.  1019;  Whit- 
ing V.  Edmunds,  94  N.  Y.  309. 

57  See  ante,  §  52(f). 

58McGinnis  v.  Porter,  20  Pa.  St.  80;  Duke  v.  Harper,  6  Yerg. 
(Tenn.)  280,  27  Am.  Dec.  462;  Reusens  v.  Lawson,  91  Va.  226; 
;Swann  v.  Thayer,  36  W.  Va.  46;   Austin  v.  Wilson,  46  Iowa,  362; 

(1010) 


Ch.    23]  ADVERSE  POSSESSION  OF  LAND.  §  443 

The  holding  over  by  a  tenant  after  the  termination  of  the 
term  is  regarded  as  not  adverse  to  the  landlord,  but  rather 
as  in  subordination  to  his  rights,  in  the  absence  of  any  dis- 
claimer on  the  part  of  the  tenant.^^  But  while,  in  this  case, 
the  common-law  principle  that  a  tenant  by  sufferance  is  not  a 
disseisor  is  applied,  it  is  not  usually  applied  in  the  case  of  a 
holding  over  by  a  tenant  pur  autre  vie,  the  gTantee  of  a 
tenant  for  life,  to  whom  the  remainderman  or  reversioner 
does  not  stand  in  the  relation  of  landlord.*"*^ 

Since  the  possession  of  a  mortgagor  is  perfectly  consistent 
v^ith  his  recog-nition  of  the  rights  of  the  mortgagee,  such  pos- 
session, before  any  breach  of  the  condition  of  the  mortgage,  is 
not  adverse,  so  that  its  continuance  for  the  statutory  period 
of  limitation  will  bar  the  mortgagee's  rights,  unless  these  are 
openly  denied  by  the  mortgagor,  and  the  mortgage  repudi- 

Ponder  v.  Cheeves,  104  Ala.  307;   Sansci-ainte  v.  Torongo,  87  Mich. 
69;  Doherty  v.  Matsell,  119  N.  Y.  646,  Finch's  Gas.  1019. 

59  whaley  v.  Whaley,  1  Speer  (S.  C.)  225;  Gwynn  v.  Jones'  Lessee, 
2  Gill  &  J.  (Md.)  173;  Schuylkill  &  D.  Improvement  &  Railroad  Co. 
V.  McCreary,  58  Pa.  St.  304;  Alderson  v.  Marshall,  7  Mont.  288; 
Carson  v.  Broady,  56  Neb.  648,  71  Am.  St.  Rep.  691;  Holman  v. 
Bonner,  63  Miss.  131;  Watson  v.  Smith's  Lessee,  10  Yerg.  (Tenn.) 
476;  Angell,  Limitations,  §§  441,  442.  In  New  York  the  statute  pro- 
vides that  the  holding  of  a  tenant  shall  not  be  adverse  till  twenty 
years  after  the  expiration  of  the  term.  See  Whiting  v.  Edmunds, 
94  N.  Y.  309. 

60  Jones  V.  Johnson,  81  Ga.  293;  Jackson  v.  Harsen,  7  Cow.  (N.  Y.) 
323,  17  Am.  Dec.  517;  Henley  v.  Wilson,  77  N.  C.  216;  Rosenau  v. 
Childress,    111   Ala.    214.     And   see   Safford   v.    Stubbs,   117    111.    389. 

So  it  is  frequently  said  that  the  statutory  period  does  not  begin 
to  run  against  the  remainderman  until  the  death  of  the  life  tenant, 
implying  that  then  it  necessarily  does  so.  See  cases  cited  post, 
note  65.  For  the  contrary  view,  that  it  does  not  run  against  a 
tenant  pur  autre  vie  holding  over,  see  Bannon  v.  Brandon,  34  Pa. 
St.  263,  75  Am.  Dec.  655;  Day  v.  Cochran,  24  Miss.  261.  The  Eng- 
lish cases  decided  under  the  Statute  of  James  were  not  in  accord 
in  this  respect.  See  Doe  d.  Souter  v.  Hull,  2  Dowl.  &  R.  38,  3  Gray's 
Cas.  60;  Doe  d.  Parker  v.  Gregory,  2  Adol.  &  E.  14,  3  Gray's  Cas. 
68;  Lightwood,  Possession  of  Land,  162. 

(1011) 


§   443  REAL  PROPERTY.  [Ch.    23 

ated.^^  The  possession  of  the  mortgagee  likewise  is  regard- 
ed, except  in  so  far  as  it  is  necessary  for  his  security,  as  in 
behalf  of  the  mortgagor,  to  whom  he  must  account  for  the 
rents  and  profits,^^  and  is  consequently  not  adverse,  in  the 
absence  of  a  denial  of  the  mortgagor's  rights.^^ 

The  possession  of  a  licensee  is  not  adverse  to  that  of  the 
licensor,  unless  and  until  he  asserts  a  claim  to  the  land  hos- 
tile to  the  rights  of  the  latter.®* 

A  possession  cannot  be  regarded  as  hostile  to  one  who, 
owing  to  the  fact  that  he  has  no  right  of  possession,  cannot 
sue  to  protect  it,  and  consequently,  as  a  rule,  until  the  death 
of  a'  tenant  for  life,  the  statute  does  not  begin  to  run  against 
a  remainderman  in  favor  of  a  third  person.®^ 

61  Whittington  v.  Flint,  43  Ark.  504,  51  Am.  Rep.  572;  Norris  v. 
He,  152  111.  190,  43  Am.  St.  Rep.  233;  Chouteau  v.  Riddle,  110  Mo. 
366;  Boyd  v.  Beck,  29  Ala.  703;  Holmes  v.  Turner's  Falls  Co.,  150 
Mass.  535;  Flynn  v.  Lee,  31  W.  Va.  487;  Grether  v.  Clark,  75  Iowa, 
383,  9  Am.  St.  Rep.  491;  Tripe  v.  Marcy,  39  N.  H.  439;  Creigh's  Heirs 
V.  Henson,  10  Grat.  (Va.)  231;  Martin  v.  Jackson,  27  Pa.  St.  504, 
67  Am.  Dec.  489. 

62  See  post,  §  520. 

63  Warder  v.  Enslen,  73  Cal.  291;  Green  v.  Turner,  38  Iowa,  112; 
Anding  v.  Davis,  38  Miss.  574,  77  Am.  Dec.  658;  Holmes  v.  Turner's 
Falls  Co.,  150  Mass.  535;  Kip  v.  Hirsh,  53  N.  Y.  Super.  Ct.  1; 
Cholmondeley  v.  Clinton,  2  Jac.  &  W.  1. 

64  Cameron  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  60  Minn.  100;  Blaisdell 
V.  Portsmouth,  G.  F.  &  C.  R.  Co.,  51  N.  H.  483;  Luce  v.  Carley,  24 
Wend.  (N.  Y.)  451,  35  Am.  Dec.  637;  Curtis  v.  La  Grande  Hydraulic 
Water  Co.,  20  Or.  34;  Kittaning  Academy  v.  Brown,  41  Pa.  St.  269; 
Sanitary  Dist.  of  Chicago  v.  Allen,  178  111.  330. 

65  Angell,  Limitations,  §  371  et  seq.;  Ogden  v.  Ogden,  60  Ark.  70, 
46  Am.  St.  Rep.  151;  Anderson  v.  Northrop,  30  Fla.  612;  Mettler 
V.  Miller,  129  111.  630;  Rosenau  v.  Childress,  111  Ala.  214;  Pratt 
V.  Churchill,  42  Me.  471;  Bagley  v.  Kennedy,  81  Ga.  721;  Lindley 
v.  Groff,  37  Minn.  338;  Pinckney  v.  Burrage,  31  N.  J.  Law,  21;  Davis 
V.  Dickson,  92  Pa.  St.  365;  Moseley  v.  Hankinson,  25  S.  C.  519; 
Wallingford  v.  Hearl,  15  Mass.  471;  Watkins  v.  Green,  101  Mich. 
493;   Higgins  v.  Crosby,  40  111.  260. 

In  Illinois,  under  the  short  limitation  act,  however,  it  is  held  that, 

(1012) 


Ch.  23]  ADVERSE  POSSESSION  OF  LAND.  jj   443 

One  who  goes  into  possession  of  land  under  a  transfer  of 
the  land  from  the  owner,  which  is  invalid  because  oral  mere- 
ly, may  assert  the  bar  of  the  statute  against  the  owner  if  his 
possession  continues  for  the  statutory  period,  since  his  pos- 
session is  under  a  claim  of  right  which  is  necessarily  exclu- 
sive of  any  rights  in  the  transferee.^*'  Likewise  the  posses- 
sion of  one  who  enters  under  an  executory  contract  for  a  con- 
veyance is  usually  regarded  as  adverse  to  his  vendor  from  the 
time  of  the  payment  of  the  purchase  money,^"  and  generally 
a  grantee's  possession  is  regarded  as  adverse  to  the  rights  of 
the  gTantor,  whatever  be  the  defects  in  the  grant.^^ 

Mistake  in  locating  boundary. 


The  question  has  frequently  arisen  whether,  when  an  own- 
er of  land,  by  mistake   as  to  the  boundary  line  of  his  land, 

if  the  possession  is  by  one  not  claiming  merely  as  assignee  of  the 
life  estate,  but  as  the  owner  of  fee,  it  is  adverse  to  the  remainder- 
man, since,  though  the  latter  cannot  sue  for  possession,  he  can 
prevent  the  running  of  the  statute  by  paying  the  taxes.  Nelson  v. 
Davidson,  160  111.  254.  Moreover,  in  that  state,  the  remainderman, 
to  be  protected,  must  claim  under  an  instrument  which  appears  of 
record,  or  of  which  the  person  in  possession  has  notice.  Lewis  v. 
Barnhart,  145  U.  S.  56. 

60  Sumner  v.  Stevens,  6  Mete.  (Mass.)  337;  Schafer  v.  Hauser, 
111  Mich.  622,  66  Am.  St.  Rep.  403;  Vandiveer  v.  Stickney,  75  Ala. 
225;  Clark  v.  Gilbert,  39  Conn.  94;  Stewart  v.  Duffy,  116  111.  47; 
Rannels  v.  Rannels,  52  Mo.  109;  Trotter  v.  Neal,  50  Ark.  340;  Stud- 
still  V.  Willcox,  94  Ga.  690;  Bartlett  v.  Secor,  56  Wis.  520;  Camp- 
bell V.  Braden,  96  Pa.  St.  388. 

6T  Furlong  v.  Garrett,  44  Wis.  Ill;  Watts  v.  Witt,  39  S.  C.  356; 
East  Tennessee,  V.  &  G.  Ry.  Co.  v.  Davis,  91  Ala.  615;  Adams  v. 
Fullam,  43  Vt.  592;   Catlin  v.  Decker,  38  Conn.  262. 

08  Nowlin  V.  Reynolds,  25  Grat.  (Va.)  137;  Parkersburg  Nat.  Bank 
V.  Neal,  28  W.  Va.  744;  Mattison  v.  Ausmuss,  50  Mo.  551;  Carmody 
V.  Chicago  &  A.  R.  Co.,  Ill  111.  69;  Gossom  v.  Donaldson,  18  B. 
Men.  (Ky.)  239,  68  Am.  Dec.  723;  Case  v.  Green,  53  Mich.  615; 
Melvin  v.  Proprietors  of  Locks  &  Canals  on  Merrimack  River,  5 
Mete.   (Mass.)  15,  38  Am.  Dec.  384. 

(1013) 


§  443  REAL  PROPERTY.  [Ch. 23 

takes  possession  of  another's  land,  and  holds  it  for  the  statu- 
tory period,  he  thereby  acquires  the  title  as  against  the  real 
owner.  In  some  states,  in  such  a  case,  the  possession  is  re- 
garded as  adverse,  without  reference  to  the  fact  that  it  is 
based  on  mistake,  it  being  sufficient  that  actual  and  visible 
possession  is  taken  under  claim  of  right. ^^  In  other  states 
the  fact  that,  in  such  case,  the  possession  of  the  other's  land  is 
under  mistake,  is  regarded  as  material,  and  a  distinction  is 
asserted  to  the  effect  that,  if  such  possession  up  to  the  bound- 
ary as  located  is  with  the  intention  of  claiming  to  such 
boundary  even  though  the  boundary  be  incorrect,  the  posses- 
sion is  adverse,  while,  if  it  is  with  the  intention  of  claiming 
thereto  only  if  the  boundary  is  correct,  the  possession  is  not 
adverse.^  ° 

Of  these  two  views  the  former  seems  to  be  decidedly  pref- 
erable, from  the  standpoint  of  both  principle  and  conven- 
ience of  application.  Of  the  latter  it  may  be  said,  not  only 
does  it  confer  a  premium  upon  conscious  wrongdoing,  but  it 

69  French  v.  Pearce,  8  Conn.  439,  21  Am.  Dec.  680,  3  Gray's  Cas. 
76;  Yetzer  v.  Thoman,  17  Ohio  St.  130,  91  Am.  Dec.  122;  Metcalfe 
V.  McCutchen,  60  Miss.  145;  Burnell  v.  Maloney,  39  Vt.  579,  94 
Am.  Dec.  358;  Tex  v.  Pflug,  24  Neb.  666,  8  Am.  St.  Rep.  231;  Levy 
V.  Yerga,  25  Neb.  764,  13  Am.  St.  Rep.  525;  Seymour,  Sabin  &  Co. 
V.  Carli,  31  Minn.  81;  Ramsey  v.  Glenny,  45  Minn.  401,  22  Am.  St. 
Rep.  736;  Greene  v.  Anglemlre,  77  Mich.  168;  Crary  v.  Goodman, 
22  N.  Y.  170;  Tolman  v.  Sparhawk,  5  Mete.  (Mass.)  469;  Grim  v. 
Murphy,  110  111.  271  (semble) ;  Dyer  v.  Eldridge,  136  Ind.  654.  See 
Bishop  V.  Bleyer,  105  Wis.  330. 

70  Wilson  V.  Hunter,  59  Ark.  626,  43  Am.  St.  Rep.  63;  Watrous 
V.  Morrison,  33  Fla.  261,  39  Am.  St.  Rep.  139;  Taylor  v.  Fomby, 
116  Ala.  621;  Ayers  v.  Reidel,  84  Wis.  276,  Finch's  Cas.  1016;  Grube 
V.  Wells,  34  Iowa,  148,  3  Gray's  Cas.  82;  Mills  v.  Penny,  74  Iowa, 
172,  7  Am.  St.  Rep.  474;  Winn  v.  Abeles,  35  Kan.  85,  57  Am.  Rep. 
138;  Preble  v.  Maine  Cent.  R.  Co.,  85  Me.  260,  35  Am.  St.  Rep. 
366;  McCabe  v.  Bruere,  153  Mo.  1;  Finch  v.  Ullman,  105  Mo.  255,  24 
Am.  St.  Rep.  383,  note;  Caufield  v.  Clark,  17  Or.  473,  11  Am.  St. 
Rep.  845;  King  v.  Brigham,  23  Or.  262;  Chance  v.  Branch,  58  Tex. 
490. 

(1014) 


Ch.  23]  ADVERSE  POSSESSION  OF  LAND.  §   444 

introduces  into  the  law  of  adverse  possession  a  requirement 
that  is  never  asserted  in  connection  therewith  except  in  the 
case  of  mistake  in  locating  a  boundary.  Under  such  a  rule, 
generally  applied,  a  man  would  never  be  in  adverse  posses- 
sion of  land  unless  he  had  the  intention  of  claiming  the  land 
in  case  his  title  turned  out  to  be  defective.  As  a  matter  of 
fact,  a  person  who  belfeves  that  he  o^vns  certain  land,  or  land 
up  to  a  certain  boundary,  has  no  thought  as  to  what  he  will 
do  in  case  he  is  mistaken  in  his  belief.  Furthermore,  assum- 
ing that  there  is  an  intention  in  the  mind  of  the  possessor, 
such  an  intention  is  necessarily  difficult,  and  frequently  im- 
possible, of  determination,  with  any  approach  to  accuracy.'''^ 

§  444.     Extent  of  possession. 

As  a  general  rule,  one  can  acquire  by  adverse  possession  so 
great  an  extent  of  land  only  as  is  covered  by  his  acts  of  actual 
possession,  continued  through  the  statutory  period.'''^  It  is, 
however,  a  well-recognized  principle  in  this  country  that  one 
having  "color  of  title" — that  is,  claiming  under  what  pur- 
ports to  be  a  valid  muniment  of  title,  although  he  actually 
occupies  a  part  only  of  the  tract  conveyed— is  to  be  regarded 
as  in  constructive  possession  of  the  whole  tract  for  the  pur- 
pose of  barring  the  entry  of  the  owmer  after  the  lapse  of  the 
statutory  period, 

'1  "Adopt  the  rule  that  an  entry  and  possession  under  a  claim  of 
right,  if  through  mistake,  does  not  constitute  an  adverse  possession, 
*  *  *  the  inquiry  no  longer  is  whether  visible  possession,  with 
the  intent  to  possess,  under  a  claim  of  right,  and  to  use  and  en- 
joy as  one's  own,  is  a  disseisin,  but  from  this  plain  and  easy  standard 
of  proof  we  are  to  depart,  and  the  invisible  motives  of  the  mind 
are  to  be  explored."  French  v.  Pearce,  8  Conn.  439,  3  Gray's  Gas. 
76,  per  Hosmer,  G.  J. 

72  Proprietors  of  Kennebeck  Purchase  v.  Springer,  4  Mass.  416, 
Finch's  Gas.  1021;  Ferguson  v.  Peden,  33  Ark.  150;  Garrison  v. 
Sampson,  15  Gal.  93;  Bristol  v.  Garroll  Gounty,  95  111.  84;  Barber 
v.  Robinson,  78  Minn.  193;  Allen  v.  Mansfield,  108  Mo.  343;  Ege 
V.  Medlar,  82  Pa.  St.  86;  Langdon  v.  Templeton,  66  Vt.  173. 

(1015) 


§  444  REAL  PROPERTY.  [Ch.  23 

This  rule  is  founded  on  the  theory  that  one  who  has  notice 
of  an  adverse  occupancy  of  part  of  his  land  under  a  claim  of 
title  based  on  written  evidence  thereof  is  chargeable  with  no- 
tice that  the  claim  is  limited  only  by  the  terms  of  the  con- 
veyance. The  rule  applies  not  only  when  possession  is  taken 
under  a  conveyance  which  is  invalid,  either  for  want  of  title 
or  capacity  in  the  grantor,  or  for  want  of  proper  formalities 
in  the  execution  of  the  instrument,'^ ^  but  also  when  it  is  taken 
under  a  void  or  voidable  decree  of  court,'^^  and  generally 
when  there  is  what  is  known  as  a  "paper  title."  There  is, 
however,  considerable  question  as  to  whether  a  conveyance 
void  on  its  face  constitutes  "color  of  title"  for  this  purpose, 
or  for  the  purpose  of  the  short  limitation  acts.''^^  A  convey- 
ance which  does  not  contain  any  sufficient  description  of  the 
land  sought  to  be  conveyed  is  necessarily  insufficient  as  color 
of  title  for  the  purpose  of  constructive  possession.'^^ 

73Noyes  v.  Dyer,  25  Me.  468;  Stull  v.  Rich  Patch  Iron  Co.,  92  Va. 
253;  Finch's  Cas.  1023;  Ellington  v.  Ellington,  103  N.  C.  54;  Hecock  v. 
Van  Dusen,  80  Mich.  359;  Fugate  v.  Pierce,  49  Mo.  447;  Miesen  v. 
Canfield,  64  Minn.  513;  Swift  v.  Mulkey,  17  Or.  532;  Wright  v.  Matti- 
son,  18  How.  (U.  S.)  50;  Carter  v.  Chevalier,  108  Ala.  563. 

74Bynum  v.  Thompson,  25  N.  C.  578;  Reedy  v.  Camfield,  159  111. 
254. 

"5  That  a  conveyance  void  on  its  face  does  not  give  color  of  title, 
see  Frique  v.  Hopkins,  8  Mart.  (La.)  110;  Redfield  v.  Parks,  132  U. 
S.  239;  Larkin  v.  Wilson,  28  Kan.  513.  Contra,  Roddick  v.  Long, 
124  Ala.  260;  Miesen  v.  Canfield,  64  Minn.  513;  Barger  v.  Hobbs, 
67  111.  592;  Wilson  v.  Atkinson,  77  Cal.  485. 

Sometimes  the  view  is  taken  that  a  conveyance  defective  on  its 
face  will  be  sufficient  as  color  of  title  if  the  defect  is  such  that 
a  person  unlearned  in  the  law  would  have  reason  to  consider  the 
instrument  valid.  Beverly  v.  Burke,  9  Ga.  443,  54  Am.  Dec.  351; 
Avent  V.  Arrington,  105  N.  C.  377,  390. 

76  Jackson  v.  Woodruff,   1  Cow.    (N.  Y.)    276,  13  Am.  Dec.   525,  3 
Gray's  Cas.  88;   Bellows  v.  Jewell,  60  N.  H.  420;   Davis  v.  Stroud, 
104  N.  C.  484;   Ohio  &  M.  Ry.  Co.  v.  Barker,  125  111.  303;   Reddick 
v.  Long,  124  Ala.  260. 
(1016) 


■Ch.   23]  ADVERSE  POSSESSION  OF  LAND.  ;>   444 

In  order  that  this  principle,  giving  one  constructive  pos- 
session beyond  the  limits  of  his  actual  occupancy,  may  apply, 
not  only  the  land  not  actually  occupied,  but  also  that  occu- 
pied, must  belong  to  the  same  person,  and  the  owner  of  land 
is  not  affected  with  notice  as  of  a  constructive  possession  of 
his  land  by  the  fact  that  it  is  included  in  a  conveyance  with 
other  land  not  belonging  to  him,  if  such  other  land  alone  is 
occupied  by  the  claimant. "''^ 

The  fact  that  the  true  owner  of  land  is  in  actual  possession 
of  part  of  the  land  prevents  the  application,  in  favor  of  an- 
other, of  the  rule  of  constructive  possession  by  color  of  title 
as  to  the  land  not  occupied  by  the  true  owner.'''^  The  rule, 
moreover,  cannot  be  applied  in  favor  of  one  person  as  against 
another  who  has  previously  obtained  constructive  possession 
of  the  same  land, — that  is,  in  the  case  of  overlapping  con- 
veyances, neither  of  which  is  valid,  the  grantee  who  first 
takes  actual  possession  of  part  of  the  land  included  in  his 
conveyance  obtains  constructive  possession  of  the  land  cov- 
ered by  both  conveyances,  to  the  exclusion  of  the  subsequent 
acquisition  of  merely  constructive  possession  of  such  land  by 
the  other. '^^ 

The  land  in  actual  possession  must  adjoin  that  of  which 

T!  Bailey  v.  Carleton,  12  N.  H.  9,  37  Am.  Dec.  190,  3  Gray's  Gas. 
99;  Word  v.  Box,  66  Tex.  596;  Korner  v.  Rankin's  Heirs,  11  Grat. 
(Va.)  420;  Garrett  v.  Ramsey,  26  W.  Va.  345;  Turner  v.  Stephenson, 
72  Mich.  409;  Hicklin  v.  McClear,  18  Or.  126;  Hole  v.  Rittenhouse, 
25  Pa.  St.  491. 

TsHunnicutt  v.  Peyton,  102  U.  S.  333;  Hall  v.  Powel,  4  Serg.  & 
R.  (Pa.)  456,  8  Am.  Dec.  722;  Semple  v.  Cook,  50  Cal.  26;  Langdon 
V.  Templeton,  66  Vt.  173;  Claiborne  v.  Elkins,  79  Tex.  380;  Bradley 
V.  West,  60  Mo.  33.  But  that  this  is  the  case  only  if  such  actual 
possession  by  the  true  owner  existed  before  the  constructive  pos- 
session by  the  claimant,  see  Stull  v.  Rich  Patch  Iron  Co.,  92  Va. 
253,  Finch's  Gas.  1023. 

79  Jackson  v.  Vermilyea.  6  Cow.  (N.  Y.)  677,  3  Gray's  Cas.  91; 
Frisby  v.  Withers,  61  Tex.  134;  Garrett  v.  Ramsey,  26  W.  Va.  345. 

(1017) 


§   444  REAL  PROPERTY,  [Qh.  23 

constructive  possession  is  claimed,^^  and  the  two  tracts  of 
land  must,  according  to  some  decisions,  be  included  within 
one  description  in  the  instrument  under  which  the  claim  is 
made,  and,  if  they  are  described  as  separate  tracts,  it  is  im- 
material that  the  descriptions  are  both  in  one  conveyance.^ ^ 
In  some  states  there  is  a  restriction  upon  the  application 
of  the  rule  of  constructive  possession,  to  the  effect  that  it 
will  apply  only  when  the  land  claimed  by  reason  of  construc- 
tive possession  is  such,  in  character  and  extent,  that  its  use 
in  connection  with  the  land  actually  occupied  would  be  in 
accord  with  the  custom  of  the  country.^ ^  In  other  states  no 
such  restriction  upon  the  application  of  the  rule  is  recog- 
nized, it  being  only  necessary  that  the  actual  possession  be  of 
a  visible  character,  however  small  it  may  be  in  extent  in  com- 
parison with  the  land  claimed.^^ 

soHerbst  v.  Merrifield,  133  Mo.  267;  Wilson  v.  McEwan,  7  Or. 
87;  Georgia  Pine  Inv.  &  Mfg.  Co.  v.  Holton,  94  Ga.  551;  Brown  v. 
Bocquin,  57  Ark.  97;  West  v.  McKinney,  92  Ky.  638. 

81  Morris  v.  McClary,  43  Minn.  346;  Grimes  v.  Ragland,  28  Ga. 
123,  Finch's  Gas.  1029;  Griffin  v.  Lee,  90  Ga.  224;  Den  d.  Carson 
V.  Mills,  18  N.  C.  546,  30  Am.  Dec.  143;  Doe  d.  Loflin  v.  Cobb,  46 
N.  C.  406,  62  Am.  Dec.  173;  Montgomery  v.  Gunther,  81  Tex.  320; 
Farrar  v.  Eastman,  10  Me.  191;  Willamette  Real  Estate  Co.  v. 
Hendrix,  28  Or.  485.     Contra,  Dills  v.  Hubbard,  21  111.  328. 

82  Jackson  v.  Woodruff,  1  Cow.  (N.  Y.)  276;  Simpson  v.  Downing, 
23  Wend.  (N.  Y.)  316,  3  Gray's  Cas.  94;  Pepper  v.  O'Dowd,  39  Wis. 
538  (Stat);  Thompson  v.  Burhans,  61  N.  Y.  52;  Paine  v.  Hutchins, 
49  Vt.  314.  See  Murphy  v.  Doj^e,  37  Minn.  113;  Turner  v.  Stephen- 
son, 72  Mich.  409. 

S3  See  Hicks  v.  Coleman,  25  Cal.  122,  85  Am.  Dec.  103;  Doe  d.  Lenoir 
V.  South,  32  N.  C.  237;  Grigsby  v.  May,  84  Tex.  240. 

(1018) 


CHAPTER  XXIV. 
PRESCRIPTION  FOR  INCORPOREAL,  THINGS. 

§  445.  General  considerations. 

446.  Tacking. 

447.  Personal  disabilities. 

448.  Continuity  of  user. 

449.  Exclusiveness  of  user. 

450.  Hostile  character  of  user. 

451.  Specific  rights. 

452.  Rights  in  the  public. 

The  adverse  user  of  another's  land,  as  if  in  enjoyment  of  an 
easement  or  right  of  profit  therein,  will,  if  continued  for  the 
statutory  period  of  limitation,  usually  create  a  corresponding^ 
easement  or  right  of  profit  in  the  land,  this  being  known  as 
prescription. 

The  user  need  not  be  by  one  person  for  the  whole  period,  but 
may  be  by  different  persons  in  privity  with  one  another. 

The  prescriptive  period  does  not  run,  as  against  an  owner 
of  land,  who  is  under  a  disability  at  the  time  of  the  beginning 
of  such  user,  until  the  termination  of  the  disability. 

The  user  must  be  continuous  for  the  prescriptive  period,  and 
is  not  sufficient  if  actually  interrupted  by  the  owner  of  the 
land,  though  mere  protests  by  him  against  the  user  do  not 
effect  an  interruption. 

The  user  must  be  such  as  to  give  a  right  of  action  to  the 
owner  of  the  land  against  the  person  exercising  the  user,  and 
for  this  reason  rights  to  the  passage  of  light  or  to  support,  and 
rights  to  the  percolation  of  water  from  adjoining  land,  cannot 
usually  be  thus  acquired. 

The  public  may,  by  the  user  of  private  land  for  purposes  of 
passage  during  the  statutory  period,  acquire  highway  rights 
therein. 

(1019) 


§  445  REAL  PROPERTY.  [Q^.   24 

§  445.     General  considerations. 

Though  the  Statute  of  Westminster  I.,  establishing  a  date 
back  of  which  the  pleader  could  not  go/  applied  to  ac- 
tions for  the  recovery  of  the  land  only,  and  not  to  those 
for  the  recovery  of  incorporeal  things,  "the  judges,  v^^ith  that 
assumption  of  legislative  authority  which  has  at  times  char- 
acterized our  judicature,  proceeded  to  apply  the  rule  as  to 
prescription  established  by  the  statute  to  incorporated  heredit- 
aments, and,  among  others,  to  easements."^  Subsequently, 
when,  by  the  Statute  of  32  Hen.  VIII.  c.  2,  and  21  Jac.  I. 
c.  16,  the  time  for  bringing  a  writ  of  right  or  a  possessory 
action  to  recover  land  was  reduced  to  sixty  and  twenty  years, 
respectively,  it  might  have  been  expected  that  the  judges 
would,  as  in  the  case  of  the  earlier  act,  apply  the  analogy  of 
these  acts  to  incorporeal  things.  This,  however,  it  seems, 
they  did  not  do,^  but  they  effected  the  same  end  by  the  adop- 
tion of  the  fiction  that  a  grant  of  the  right  would  be  presumed 
if  it  had  been  exercised  for  a  period  of  twenty  years;  this 
doctrine  of  a  lost  grant  being  in  reality  prescription,  under 
another  name,  shortened  in  analogy  to  the  period  of  limita- 
tion fixed  by  the  Statute  of  James.'*  In  the  case  of  pre- 
scription, as  it  existed  by  analogy  to  the  early  statute,  tlje 
exercise  of  the  right  from  the  date  named  conferred  an  un- 
impeachable title.  Whether  this  presumption  of  a  lost 
grant,  on  the  other  hand,  had  a  like  effect, — that  is,  whether 

1  Ante,  §  436. 

2  Cockburn,  C.  J.,  in  Angus  v.  Dalton,  3  Q.  B.  Div.  85,  104. 

3  Gale,  Easements,  170,  citing  tlie  statements  to  that  effect  in 
Angus  V.  Dalton,  4  Q.  B.  Div.  at  pages  170,  199,  per  Thesiger  and 
Brett,  L.  J.,  and  in  6  App.  Cas.  at  page  778,  per  Fry,  J.  But  that  the 
periods  fixed  by  these  statutes  was  applied  in  determining  the 
period  of  "immemorial  user"  for  the  purpose  of  prescription,  see 
Yard  v.  Ford,  2  Saund.  175,  note;  Gale,  Easements,  169;  Coolidge 
v.  Learned,  8  Pick.  (Mass.)  504,  Finch's  Cas.  1036. 

4  Gale,  Easements,  171.  See  Coolidge  v.  Learned,  8  Pick.  (Mass.) 
504,  Finch's  Cas.  1036. 

(1020) 


Ch.  24]  PRESCRIPTION.  j;  445 

it  was  a  conclusive  presumption,  or  could  be  rebutted  by  evi- 
dence that  there  was  no  such  grant, — is  a  question  on  which 
there  was  great  doubt.  '  In  practice  it  seems  to  have  been 
the  custom  for  the  court  to  instruct  the  jury  to  find  the  ex- 
istence of  such  a  grant,  even  though  there  was  evidence  to 
show  that  it  did  not  exist.  Eventually  the  Statute  of  2  &  3 
Wm.  IV.  c.  71  (A.  D.  1832),  termed  the  "Prescription  Act/' 
was  passed,  "with  the  view,"  it  is  said,  "of  putting  an  end  to 
the  scandal  on  the  administration  of  justice  which  arose  from 
thus  forcing  the  consciences  of  juries."'^' 

In  this  country  the  courts  have  usually  followed  the  an- 
alogy of  the  statute  of  limitations  applicable  to  actions  for 
the  recovery  of  land,  with  the  effect  that  one  who  has  exer- 
cised a  right  in  another's  land  for  such  a  statutory  period, 
adversely  and  under  claim  of  right,  is  regarded  as  having 
such  right.^  And  while,  quite  frequently,  it  is  said  that 
from  such  user  a  gi-ant  will  be  presumed,  the  presumption  is 
in  effect  a  positive  rule  of  law,  and  evidence  that  no  grant 
was  made  would  be  immaterial.''^  In  some  states  there  are 
statutes  providing  for  the  acquisition  of  rights  in  another's 

5  Cockburn,  C.  J.,  in  Angus  v.  Dalton,  3  Q.  B.  Div.  105. 

6Melvin  v.  Whiting,  10  Pick.  (Mass.)  295,  3  Gray's  Cas.  184; 
Coolidge  V.  Learned,  8  Pick.  (Mass.)  504,  Finch's  Cas.  1037;  Mueller 
V.  Fruen,  36  Minn.  273;  Carlisle  v.  Cooper,  19  N.  J.  Eq.  256;  Com- 
ing V.  Gould,  16  Wend.  (N.  Y.)  531;  Cobb  v.  Davenport,  32  N.  J. 
Law,  369;  Nicholls  v.  Wehtworth,  100  N.  Y.  455;  Legg  v.  Horn,  45 
Conn.  409;   Krier's  Private  Road,  73  Pa.  St.  109. 

T  Lamb  v.  Crosland,  4  Rich.  Law  (S.  C.)  536,  3  Gray's  Cas.  193; 
Coolidge  V.  Learned,  8  Pick.  (Mass.)  504,  Finch's  Cas.  237;  Tracy 
V.  Atherton,  36  Vt.  503,  3  Gray's  Cas.  202;  Lehigh  Valley  R.  Co.  v. 
McFarlan,  43  N.  J.  Law,  605,  3  Gray's  Cas.  213;  Wallace  v.  Fletcher, 
30  N.  H.  434;  Okeson  v.  Patterson,  29  Pa.  St.  22;  Ward  v.  Warren, 
82  N.  Y.  265;  Carter  v.  Tinicum  Fishing  Co.,  77  Pa.  St.  310;  Tyler 
V.  Wilkinson,  4  Mason,  397,  Fed.  Cas.  No.  14,312.  There  are  sug- 
gestions to  the  contrary  in  Parker  v.  Foote,  19  Wend.  (N.  Y.)  309, 
3  Gray's  Cas.  187;  Lanier  v.  Booth,  50  Miss.  410. 

(1021) 


§  447  REAL  PROPERTY.  [Ch.   24 

land  by  their  exercise  imder  claim  of  right  for  a  period 
named.® 

While  it  is  well  recognized  that  no  rights  can  be  acquired 
by  prescription  to  maintain  a  public  nuisance,  the  cases  are 
not  in  accord  on  the  question  whether  one's  right  to  set  up  a 
prescriptive  right  of  user,  as  against  the  private  owner  of 
land,  is  defeated  by  the  fact  that  such  user  constitutes,  in 
itself,  a  public  nuisance.^ 

§  446.     Tacking. 

As  successive  adverse  possessions  of  land  by  different  per- 
sons may  be  tacked  in  order  to  make  up  the  statutory  period, 
so  successive  adverse  users  by  different  persons  may  be  tack- 
ed for  the  same  purpose,^  ^  provided  there' is  a  privity  or  con- 
tractual connection  between  them.^^ 

§  447.    Personal  disabilities. 

The  statutory  exceptions  in  the  statutes  of  limitations  in 
favor  of  persons  under  legal  disability  are  applied  by  an- 
alogy, in  the  case  of  prescription,  when  the  owner  of  the 

s  Jones,  Easements,  §  160. 

9  That  the  fact  that  it  is  a  public  nuisance  defeats  any  right  by 
prescription,  see  Woodruff  v.  North  Bloomfield  Gravel  Min.  Co. 
(C.  C.)  18  Fed.  753;  Bowen  v.  Wendt,  103  Cal.  236;  Woodyear  v. 
Schaefer,  57  Md.  1,  40  Am.  Rep.  419 ;  Nolan  v.  City  of  New  Britain, 
69  Conn.  668;  Kissel  v.  Lewis,  156  Ind.  233;  Veazie  v.  Dwinel,  50 
Me.  479.  That  its  character  as  a  public  nuisance  does  not  have 
that  effect,  see  Perley  v.  Hilton,  55  N.  H.  444;  Borden  v.  Vincent, 
24  Pick.  (Mass.)  301;  Lawrence  v.  Inhabitants  of  Fairhaven.  5  Gray 
(Mass.)  110;  Inhabitants  of  New  Salem  v.  Eagle  Mill  Co.,  138  Mass. 
8;  Mills  V.  Hall,  9  Wend.  (N.  Y.)  315,  24  Am.  Dec.  160;  Charnley  v. 
Shawano  Water  Power  &  River  Improvement  Co.,  109  Wis.  563. 

10  Bradley's  Fish  Co.  v.  Dudley,  37  Conn.  136;  Ross  v.  Thompson, 
78  Ind.  90;  Sargent  v.  Ballard,  9  Pick.  (Mass.)  251;  Leonard  v. 
Leonard,  7  Allen  (Mass.)  277;  Dodge  v.  Stacj%  39  Vt.  558. 

11  Holland  v.  Long,  7  Gray  (Mass.)  486;  Bryan  v.  City  of  East 
St.  Louis,  12  111.  App.  390. 

(1022) 


£ll    24]  PRESCRIPTION.  g   448 

land  is  under  disability,  aud  they  are  usually  applied  to  the 
same  extent,  and  subject  to  the  same  restrictions.  So,  while 
the  statutory  period  does  not  begin  to  run  during  the  dis- 
ability of  the  landowner,  if  this  existed  when  the  right  of  ac- 
tion on  account  of  the  user  of  the  land  accrued,^-  a  dis- 
ability thereafter  arising  will  not,  by  the  weight  of  author- 
ity, extend  the  statutory  period,^ ^  and  one  disability  cannot 
be  tacked  to  another.^'* 

§  448.     Continuity  of  user. 

The  user  of  the  land,  in  order  to  create  a  right  by  prescrip- 
tion, must  be  continuous  for  the  statutory  period.-^ ''*  Accord- 
ingly, if  the  owner  of  the  land,  in  the  exercise  of  his  right  of 
ownership,  interrupts  the  exercise  of  the  user,  as  when  he 
renders  the  exercise  of  a  claim  of  passage  impossible,  the 
continuity  is  broken,^^  but  the  mere  doing  of  acts  on  the 
land  which  render  the  exercise  of  the  claim  less  convenient 
does  not  necessarily  have  that  effect.-^'''  The  fact  that  the 
owner  of  the  land,  during  the  statutory  period,  protests  or 
remonstrates  against  the  exercise  of  the  asserted  right,  with- 

12  Lamb  v.  Crosland,  4  Rich.  Law  (S.  C.)  536,  3  Gray's  Cas.  193; 
Melvin  v.  Whiting,  13  Pick.  (Mass.)  185,  3  Gray's  Cas.  186;  Edson 
V.  Munsell,  10  Allen  (Mass.)   557. 

13  Tracy  v.  Atherton,  36  Vt.  503,  3  Gray's  Cas.  203;  Mebane  v. 
Patrick,  46  N.  C.  23;  Wallace  v.  Fletcher,  30  N.  H.  434;  Edson  v. 
Munsell,  10  Allen  (Mass.)  5B7.  Contra,  Lamb  v.  Crosland,  4  Rich. 
Law  (S.  C.)  536,  3  Gray's  Cas.  193.  See  Melvin  v.  Whiting,  13  Pick. 
(Mass.)   184,  185,  3  Gray's  Cas.  186. 

14  Reimer  v.  Stuber,  20  Pa.  St.  458.  59  Am.  Dec.  744  3  Gray's 
Cas.  198. 

15  Watt  V.  Trapp,  2  Rich.  Law  (S.  C.)  136;  Peters  v.  Little,  95 
Ga.  151;  Nicholls  v.  Wentworth,  100  N.  Y.  455;  Pollard  v.  Barnes, 
2  Cush.  (Mass.)  191;  Bodfish  v.  Bodflsh,  105  Mass.  317. 

16  Sears  v.  Hayt,  37  Conn.  406;  Barker  v.  Clark,  4  N.  H.  380,  17 
Am.  Dec.  428;  Plimpton  v.  Converse,  42  Vt.  712. 

iTMcKenzie  v.  Elliott,  134  111.  156;  Webster  v.  City  of  Lowell,  142 
Mass.  324. 

(1023) 


S  448  REAL  PROPERTY.  [Ch.   24 

out  taking  any  positive  action  to  prevent  its  exercise  v^hicli 
might  be  made  the  ground  of  a  legal  action  by  a  person  en- 
titled to  the  right,  does  not,  by  the  weight  of  authority,  as 
well  as  of  reason,  prevent  the  acquisition  of  the  right. -^^ 
And  if  the  efforts  of  the  owner  of  the  land  to  prevent  the 
user  have  been  successfully  prevented  by  the  claimant  of  the 
right,  and  such  owner  has  not  then  sought  legal  protection, 
the  user  is  to  be  regarded  as  with  his  acquiescence  and  unin- 
terrupted.^® 

The  user  is  not  continuous  if  a  period  intervenes,  before 
the  completion  of  the  statutory  time,  during  which  both  the 
land  in  which  the  easement  is  claimed  and  that  for  the  benefit 
of  which  it  is  asserted  belong  to  one  person.^*^ 

The  requirement  that  the  user  be  continuous  does  not  in- 
volve any  necessity  that  the  right  be  exercised  constantly  for 
the  statutory  period,  but  rather  that  there  be  no  abandon- 
ment of  the  use  or  interruption  thereof  by  the  owner  of  the 
land.  Thus,  a  right  of  way  may  be  acquired  by  prescription 
if  there  is  an  exercise  of  the  right  at  the  pleasure  of  the 
claimant,  though  this  be  at  infrequent  intervals,^^  and  the 
right  to  interfere  with  the  natural  flow  of  a  stream  may  be  so 
acquired,  though  such  interference  is  at  times  discontinued 

18  Lehigh  Valley  R.  Co.  v.  McParlan,  43  N.  J.  Law,  605,  3  Gray's 
Cas.  213;  Kimball  v.  Ladd,  42  Vt.  747;  Ferrell  v.  Ferrell,  1  Baxt. 
(Tenn.)  329;  Cox  v.  Clough,  70  Cal.  345;  McGeorge  v.  Hoffman,  133 
Pa.  St.  381;  Okeson  v.  Patterson,  29  Pa.  St.  22;  Connor  v.  Sullivan, 
40  Conn.  26;  Jordan  v.  Land,  22  S.  C.  159;  Angus  v.  Dalton,  3  Q. 
B.  Div.  93,  per  Lush,  J.,  4  Q.  B.  Div.  172,  186,  per  Thesiger  and 
Cotton,  L.  J.  Contra,  Chicago  &  N.  W.  Ry.  Co.  v.  Hoag,  90  111.  339; 
Powell  V.  Bagg,  8  Gray  (Mass.)  441,  69  Am.  Dec.  262  (semble).  See,, 
also,  Conner  v.  Woodfill,  126  Ind.  85,  22  Am.  St.  Rep.  568. 

10  Connor  v.  Sullivan,  40  Conn.  26. 

20  Pierre  v.  Femald,  26  Me.  436,  46  Am.  Dec.  573;  Mansur  v.  Blake, 
62  Me.  38;  Murphy  v.  Welch,  128  Mass.  489;  Vossen  v.  Dautel,  116 
Mo.  379;  Stuyvesant  v.  Woodruff,  21  N.  J.  Law,  133,  47  Am.  Dec. 
156. 

21  Cox  v.  Forrest,  60  Md.  74;  Bodfish  v.  Bodfish,  105  Mass.  317. 
(1024) 


Ch.   24]  PRESCRIPTION.  §   450 

in  order  to  repair  a  dam,  or  owing-  to  a  temporary  cessation 
of  the  purpose  of  the  interference.-^ 

§  449.     Exclusiveness  of  user. 

The  user  of  another's  hind  for  the  purpose  of  passage  may 
be  effective  for  the  purpose  of  creating-  a  right  of  Avay  by  pre- 
scription, although  others  use  the  land  for  the  purpose  of 
passage,  if  there  is  an  assertion  of  a  claim  of  user  inde- 
pendent of  such  user  by  others.^"^  So  the  fact  that  the  own- 
er, or  others,  by  his  permission,  use  the  land  for  purposes  of 
passage,^"*  or  that  another  person  has  a  right  of  way  by 
grant,^^  does  not  prevent  the  acquisition  of  a  right  of  way  on 
the  same  line  by  another  person.  But  if  the  user  by  an  in- 
dividual is  in  common  with  and  similar  to  that  of  the  public 
at  large,  and  without  the  assertion  of  any  peculiar  rights  in 
himself,  the  individual  cannot  thereby  acquire  any  private 
easement.^^ 

§  450.     Hostile  character  of  user. 

In  order  that  a  right  of  using  another's  land  be  acquired 
by  lapse  of  time,  the  user  must  be  hostile  or  adverse  to  the 
owner  of  the  land, — that  is,  it  must  not  be  by  the  permission 

22  Cornwell  Mfg.  Co.  v.  Swift,  89  Mich.  503;  Hesperia  Land  & 
Water  Co.  v.  Rogers,  83  Cal.  10;  Winnipiseogee  Lake  Co.  v.  Young, 
40  N.  H.  420;  Messinger's  Appeal,  109  Pa.  St.  290;  Gerenger  v. 
Summers,  24  N.  C.  229. 

23  Cox  V.  Forrest,  60  Md.  74;  Kilburn  v.  Adams,  7  Mete.  (Mass.) 
33,  39  Am.  Dee.  754;  McKenzie  v.  Elliott,  134  111.  15G. 

24Wanger  v.  Hippie  (Pa.)  13  Atl.  81;  Webster  v.  City  of  Lowell, 
142  Mass.  324. 

25  Ballard  v.  Demmon,  156  Mass.  449. 

26  Kilburn  v.  Adams.  7  Mete.  (Mass.)  33,  39  Am,  Dee.  754;  Prince 
V.  Wilbourn,  1  Rich.  Law  (S.  C.)  58;  Plimpton  v.  Converse,  44 
Vt.  158;  Burnham  v.  McQuesten,  48  N.  H.  446;  Cobb  v.  Davenport, 
32  N.  J.  Law,  369. 

(1025) 
Real  Prop. — 65 


i?   450  REAL  PROPERTY.  [Ch.   24 

of  the  latter,  express  or  implied.-"  Furthermore,  the  user 
must  have  been  such  as  to  give  rise  to  a  right  of  action  on  the 
part  of  the  owner,  since,  if  he  cannot  interfere  with  the 
u?5er,  lie  should  not  be  deprived  thereby  of  any  rights  in  the 
land.'^^  But  provided  a  right  of  action  exists  on  account  of 
the  user  of  the  land,  the  fact  that  there  is,  by  such  user,  mere- 
ly an  infringement  of  the  right  of  property,  and  no  actual 
damage  to  the  land,  does  not  prevent  the  running  of  the 
prescriptive  period.-'' 

A  user  commencing  by  permission  or  license  may  become 
adverse  by  the  landowner's  withdrawal  uicreof,  or  by  a  re- 
pudiation of  the  owner's  rights  by  the  licensee.^*^  Likewise, 
when  the  owner  undertakes  to  confer  upon  another  a  per- 
petual interest  in  the  land,  but  fails  to  do  so  in  a  valid  man- 
ner, as  when  he  makes  an  oral  grant  of  an  easement,  the 
exercise  of  the  easement  by  such  other  in   accordance  with 

2<  Parker  v.  Foote,  19  Wend.  (N.  Y.)  3U9,  3  Gray's  Cas.  187;  Morse 
V.  Williams,  62  Me.  445;  Demuth  v.  Amweg,  90  Pa.  St.  181;  Dexter 
V.  Tree,  117  111.  532;  Whaley  v.  Jarrett,  69  Wis.  613,  2  Am.  St.  Rep. 
764;  Thomas  v.  England,  71  Cal.  456;  Kilburn  v.  Adams,  7  Mete. 
(Mass.)  33,  39  Am.  Dec.  754;  Conner  v.  Woodfill,  126  Ind.  85,  22 
Am.  St.  Rep.  568;  Conyers  v.  Scott,  94  Ky.  123;  Lanier  v.  Booth, 
50  Miss.  410;  Wiseman  v.  Lucksinger,  84  N.  Y.  31,  38  Am.  Rep. 
479;  Bsling  v.  Williams,  10  Pa.  St.  126. 

28  Richard  v.  Hupp  (Cal.)  37  Pac.  920;  Whiting  v.  Gaylord,  66 
Conn.  337;  Mitchell  v.  City  of  Rome,  49  Ga.  19;  Emery  v.  Raleigh 
&  G.  R.  Co.,  102  N.  C.  210,  11  Am.  St.  Rep.  727;  Gilmore  v.  Driscoll. 
122  Mass.  199,  207;  Turner  v.  Hart,  71  Mich.  128,  15  Am.  St.  Rep. 
243;  Burnham  v.  Kempton,  44  N.  H.  78;  Klein  v.  Gehrung,  25  Tex. 
(Supp.)  232;  Roundtree  v.  Brantley,  34  Ala.  544,  73  Am.  Dec.  470; 
Carlisle  v.  Cooper,  19  N.  J.  Eq.  256. 

29  Dana  v.  Valentine,  5  Mete.  (Mass.)  8,  2  Gray's  Cas.  61;  Bolivar 
Mfg.  Co.  Y.  Neponset  Mfg.  Co.,  16  Pick.  (Mass.)  241;  Olney  v.  Fan- 
ner, 2  R.  L  211,  57  Am.  Dec.  711;  Parker  v.  Foote.  19  Wend.  (N.  Y.) 
309,  3  Gray's  Cas.  187. 

so  Eckerson  v.  Crippen,  110  N.  Y.  585;  Huston  v.  Bybee,  17  Or. 
140;  Pitzman  v.  Boyce,  111  Mo.  387;  Thoemke  v.  Fiedler.  91  Wis. 
386. 

(1020) 


Ch.  24]  PRESCRIPTION.  |j  450 

the  teniis  of  the  invalid  grant  cannot  be  regarded  as  permis- 
sive and  in  subordination  to  the  rights  of  the  lando^vner,  but 
is  in  eiTect  adverse  to  such  rights.^ ^ 

The  user  of  a  public  highway  by  an  individual  cannot  be 
effective  as  a2:ainst  the  owner  of  the  land  on  which  the  hisch- 
way  is  located,  so  as  to  create  a  prescriptive  right  to  a  way 
in  an  individual  using  the  highway,  since  the  owner  of  the 
land  cannot,  while  it  is  used  as  a  highway,  prevent  passage 
thereon  by  such  individual.^ ^  But  such  user  may  become 
adverse  upon  the  abandonment  of  the  highway.''^ 

The  fact  that  the  land  is  in  the  possession  of  a  tenant  of 
the  owner  of  the  fee  will  not,  it  seems,  prevent  the  creation 
of  the  right  by  lapse  of  time  as  against  the  latter,  if  he  could, 
by  reason  of  his  reversionary  rights,  have  brought  suit,  at 
any  time  within  the  statutory  period,  against  the  person  exer- 
cising the  user.-''^  It  has  been  decided  that  uninclosed  wood- 
land may  be  the  subject  of  an  adverse  user  for  the  purpose 
of  a  right  of  way.^^ 

•ii  Jewett  V.  Hussey,  70  Me.  433;  Arbuckle  v.  Ward,  29  Vt.  43; 
McKenzie  v.  Elliott,  134  111.  156;  Legg  v.  Horn,  45  Conn.  415;  Tal- 
bott  V.  Thorn,  91  Ky.  417;  Stearns  y.  Janes,  12  Allen  (Mass.)  582; 
Parish  v.  Kaspare.  109  Ind.  586.  But  see  Wiseman  v.  Lucksinger, 
84  N.  Y.  31,  38  Am.  Rep.  479. 

32  Webster  v.  City  of  Lowell,  142  Mass.  324;  Wheeler  v.  Clark, 
58  N.  Y.  267;  Whaley  v.  Stevens,  27  S.  C.  549. 

33  Black  V.  O'Hara,  54  Conn.  17. 

■■■*  Cross  V.  Lewis,  2  Barn.  &  C.  686,  3  Gray's  Cas.  131 ;  Reimer  v. 
Stuber,  20  Pa.  St.  458,  3  Gray's  Cas.  198.  See  Ward  v.  Warren,  82 
N.  Y.  265;  Gale,  Easements,  192.  199.  And  compare  Pentland  v. 
Keep,  41  Wis.  490. 

In  Ballard  v.  Demmon,  156  Mass.  449.  a  disability  to  sue  on  ac- 
count of  an  outstanding  term  for  years  was  regarded  as  similar  in 
effect  to  a  personal  disability,  and  so  sufficient  to  affect  the  running 
of  the  prescriptive  period  only  if  the  term  existed  at  the  time  the 
right  of  action  on  account  of  the  user  of  the  land  accrued. 

s^Worrall  v.  Rhoads,  2  Whart.  (Pa.)  427;  Reimer  v.  Stuber,  20 
Pa.  St.  458,  3  Gray's  Cas.  198.  This  has,  however,  been  changed 
by  statute  in  Pennsylvania.     Kurtz  v.  Hoke,  172  Pa.  St.  165.     That 

(1027) 


i;  451  REAL  PROPERTY.  [Ch.  24 

The  fact  that  the  person  claiming  the  right,  during  the 
statutory  period,  offered  to  purchase  the  easement,  may 
show  that  the  user  is  not  adverse,^ ^  but  does  not  necessarily 
do  so,^'^  it  being  a  question  for  the  jury  on  all  the  circum- 
stances. 

It  is  frequently  stated  that  the  hostile  user  of  the  land 
must  be  kno^vn  to  the  owner  ;^^  but,  provided  the  user  is  of 
such  a  character  as  to  involve  a  plain  assertion  of  the  right 
to  use  the  land,  it  seems  exceedingly  doubtful  whether  the 
claimant's  rights  could  be  affected  by  the  failure  of  the  own- 
er to  notice  such  user,  owing  to  his  absence  from  the  neigh- 
borhood, or  to  other  causes.^^ 

§  451.    Specific  rights. 

A  right  of  way  over  another's  land  may  be  acquired  by 
prescription,^*^  and  the  doctrine  is  more  frequently  applied 
in  this  connection  than  in  any  other.  Rights  to  appropriate 
the  water  of  a  stream  in  excess  of  one's  natural  rights  may 
also  be  thus  acquired  as  against  lower  riparian  proprietors.^^ 

there  is  a  presumption  that  the  use  of  such  land  is  not  adverse, 
see  Sims  v.  Davis,  Cheves  (S.  C.)  1;  Gibson  v.  Durham,  3  Rich. 
Law  (S.  C.)  85. 

30  Watliins  v.  Peck,  13  N.  H.  360,  40  Am.  Dec.  156. 

37  Kana  v.  Bolton,  36  N.  J.  Eq.  21. 

38  Wallace  v.  Fletcher,  30  N.  H.  434;  Peterson  v.  McCullough, 
50  Ind.  35;  Cobb  v.  Davenport,  32  N.  J.  Law,  369;  Zigefoose  v.  Zige- 
foose,  69  Iowa,  391;  American  Co.  v.  Bradford,  27  Cal.  360;  Richard 
V.  Hupp  (Cal.)  37  Pac.  920;  Sargent  v.  Ballard,  9  Pick.  (Mass.)  251; 
Hannefin  v.  Blake,  102  Mass.  297. 

39  See,  to  this  effect,  Reimer  v.  Stuber,  20  Pa.  St.  458,  59  Am. 
Dec.  744,  3  Gray's  Cas.  198;  Perrin  v.  Garfield,  37  Vt.  304;  Ward 
V.  Warren,  82  N.  Y.  265.     See,  also,  Cook  v.  Gammon,  93  Ga.  298. 

40  Aaron  v.  Gunnels,  68  Ga.  528;  Jones  v.  Percival,  5  Pick.  (Mass.) 
485,  16  Am.  Dec.  415;  Garnett  v.  City  of  Slater.  56  Mo.  App.  207; 
Arnold  v.  Cornman,  50  Pa.  St.  361;  Talbott  v.  ThorD(.  91  Ky.  417; 
Cheney  v.  O'Brien,  69  Cal.  199;  Everedge  v.  Alexander,  75  Ga.  858. 

41  Tyler  v.  Wilkinson,  4  Mason,  397,  Fed.  Cas.  No.  14,312;  Horn 
V.  Miller,  142  Pa.  St.  557;  Whitney  v.  Wheeler  Cotton  Mills,  151 
(1028) 


Ch.    24]  PRESCRIPTION.  §   451 

The  right  to  dam  or  obstruct  the  water  of  a  stream  so  as  to 
flood  the  land  of  another  may  also  be  thus  acquired,^  ^  as  may 
the  right  to  pollute  the  water.'*^  A  right  of  profit  a  prendre 
may  be  established  by  the  taking  of  profits  for  the  prescrip- 
tive period.^^  So  one  may,  by  prescription,  have  a  right  to 
the  maintenance  of  a  fence  by  the  owner  of  adjoining  land,^^ 
or  to  conduct  a  business  on  one's  land  which  pollutes  the  at- 
mosphere, to  the  injury  of  the  land  adjoining,^*'  and  one 
may  so  acquire  the  right  to  extend  eaves  of  a  roof,  or  a  cor- 
nice, over  other  land."*" 

There  are,  on  the  other  hand,  some  easements  which  can- 
not be  acquired  by  prescription,  owing  to  the  fact  that  the 

Mass.  396;  Coonradt  v.  Hill,  79  Cal.  587;  Olney  v.  Fenner,  2  R.  I. 
211,  57  Am.  Dec.  711;  Shreve  v.  Voorhees,  3  N.  J.  Eq.  25;  Kuhlman 
V.  Hecht,  77  III.  570;  Fankboner  v.  Corder,  127  Ind.  164;  Barnes  v. 
Haynes,  13  Gray  (Mass.)  188,  74  Am.  Dec.  629;  Smith  v.  Putnam, 
62  N.  H.  369;  Krier's  Private  Road,  73  Pa.  St.  109;  Ferrell  v.  Fer- 
rell,  1  Baxt.  (Tenn.)  329;  Boyd  v.  Woolwine,  40  W.  Va.  282. 

•12  Williams  v.  Nelson,  23  Pick.  (Mass.)  141;  Emery  v.  Raleigh  & 
G.  R.  Co.,  102  N.  C.  210,  11  Am.  St.  Rep.  727;  Mueller  v.  Fruen,  36 
Minn.  273;  Vail  v.  Mix,  74  111.  127;  Turner  v.  Hart,  71  Mich.  128,  15 
Am.  St.  Rep.  243;  Alcorn  v.  Sadler,  71  Miss.  634;  Hammond  v. 
Zehner,  21  N.  Y.  118;  McGeorge  v.  Hoffman,  133  Pa.  St.  381;  Haas  v. 
Choussard,  17  Tex.  588;  Perrin  v.  Garfield,  37  Vt.  304. 

43Crossley  v.  Lightowler,  2  Ch.  App.  478;  Crosby  v.  Bessey,  49 
Me.  539;  Holsman  v.  Boiling  Spring  Bleaching  Co.,  14  N.  J.  Eq. 
335;  Gladfelter  v.  Walker,  40  Md.  1;  Gould,  Waters  (3d  Ed.)  §§  345, 
346. 

■i-t  See  Melvin  v.  Whiting,  10  Pick.  (Mass.)  295,  13  Pick.  185,  3 
Gray's  Cas.  184,  186;  Carter  v.  Tinicum  Fishing  Co.,  77  Pa.  St.  310; 
Cobb  V.  Davenport,  32  N.  J.  Law,  369. 

*■'•  Castner  v.  Riegel,  54  N.  J.  Law,  498;  Bronson  v.  Coffin,  108 
Mass.  175,  11  Am.  Rep.  335;  Adams  v.  Van  Alstyne,  25  N.  Y.  232. 

*6  Sturges  V.  Bridgman,  11  Ch.  Div.  852,  2  Gray's  Cas.  57;  Dana 
V.  Valentine,  5  Mete.  (Mass.)  8,  2  Gray's  Cas.  61. 

47  Cherry  v.  Stein,  11  Md.  1;  Grace  Methodist  Episcopal  Church 
V.  Dobbins,  153  Pa.  St.  294,  34  Am.  St.  Rep.  706.  But  prescription 
can  give  no  right  to  have  branches  overhang  adjoining  land.  Lem- 
mon  V.  Webb  [1894]  3  Ch.  1. 

(1029) 


§   451  REAL  PROPERTY.  [Ch.    24 

owner  of  the  land  is  not  in  a  position  to  prevent  the  exercise 
of  the  user  claimed,  or  to  sue  on  account  thereof,  and  conse- 
quently the  fact  that  ho  does  not  do  so  is  no  evidence -of  ac- 
quiescence on  his  part.  On  this  principle  it  has  been  decided 
that  the  appropriation  of  an  excessive  quantity  of  water  from 
a  watercourse  for  the  statutory  period  by  a  lower  riparian 
proprietor  does  not  give  liim  any  right  to  continue  such  ap- 
propriation as  against  an  upper  proju-ietor  who  may  there- 
after desire  to  use  water  therefrom,  since  the  latter  had  no 
means  of  preventing  such  excessive  appropriation  other  than 
appropriating  the  water  himself.^^  One  cannot  acquire  by 
prescri])tion  a  right  to  water  percolating  from  other  land  to 
his  land,  since  the  owner  of  the  land  from  which  it  percolates 
is  not  in  a  position  to  prevent  its  percolation.'*^  ~Nov  can 
the  ovmer  of  a  lower  tenement  acquire  by  length  of  user,  as 
against  the  upper  tenement,  a  right  to  the  flow  of  surface 
water.^'^  So,  the  owoier  of  the  upper  tenement,  who  has, 
by  the  common  law,  no  natural  right  to  have  surface  water 
flow  from  his  land  on  the  lower  tenement,  cannot  acquire 
such  right  by  the  fact  that  the  owner  of  the  latter  does  not 
prevent  such  flow  until  the  prescriptive  period  has  elapsed, 
since  such  flow  gives  no  right  of  action. ^^     In  case,  however, 

48  Sampson  v.  Hoddinott,  1  C.  B.  (N.  S.)  590,  2  Gray's  Gas.  119; 
Stockport  Waterworks  Go.  v.  Potter,  3  Hurl.  &  C.  300;  Thurber  v. 
Martin,  2  Gray  (Mass.)  394,  2  Gray's  Gas.  155;  Pratt  v.  Lamson,  2 
Allen  (Mass.).  275,  288;  Parker  v.  Hotchkiss,  25  Gonn.  321. 

49  Chasemore  v.  Richards,  7  H.  L.  Gas.  349;  Hanson  v.  McGue,  42 
Gal.  303,  10  Am.  Rep.  299;  Frazier  v.  Brown,  12  Ohio  St.  294;  Wheat- 
ley  V.  Baugh,  25  Pa.  St.  528,  64  Am.  Dec.  721;  Roath  v.  Driscoll,  20 
Gonn.  533,  52  Am.  Dec.  352;  Village  of  Delhi  v.  Youmans,  50  Barb. 
(N.  Y.)  316.     See  Ghatfield  v.  Wilson,  28  Vt.  49. 

50  Wood  V.  Waud,  3  Exch.  748 ;  Greatrex  v.  Hayward,  8  Exch. 
291;  Broadbent  v.  Ramsbotham,  11  Exch.  602. 

51  Parks  V.  Gity  of  Newburyport,  10  Gray  (Mass.)  28;  White  v. 
Ghapin,  12  Allen  (Mass.)  516;  Swett  v.  Gutts,  50  N.  H.  439,  9  Am. 
Rep.  276.     Gompare  Ross  v.  Mackeney,  46  N.  J.  Eq.  140. 

(1030) 


Ch.  24]  PRESCRIPTION.  §451 

the  owner  of  the  upper  tenement  causes  tlie  water  to  flow  on 
the  lower  tenement  in  a  particular  channel,  the  lower  pro- 
prietor can  prevent  such  action,  and  consequently  his  failure 
so  to  do  may  be  regarded  as  acquiescence  therein,  which  con- 
fers the  right  if  continued  for  the  statutory  period.^^  Where 
the  civil-law  rule,  giving  the  proprietor  of  the  upper  tene- 
ment a  natural  right  to  have  his  surface  water  flow  off  on  the 
lower  tenement,  controls,  he  may  lose  this  right  by  submit- 
ting to  the  obstruction  of  such  flow  for  the  prescriptive 
period.^^ 

One  cannot,  in  this  country,  by  the  maintenance  of  win- 
dows in  one's  building  overlooking  adjacent  land  for  the 
statutory  period,  acquire  an  easement  of  light  and  air  in 
such  land,  since  this  involves  no  injury  to  the  land,  or  dimi- 
nution of  the  value  of  the  beneficial  interest  therein,  and 
consequently  gives  no  right  of  action  to  the  landowner/'^* 
Likewise,  the  right  of  support  for  a  building  by  another 
building  or  by  adjacent  land  cannot,  by  the  weight  of  author^ 
ity  in  this  country,  be  acquired  by  prescription,  since  not 
only  is  the  exercise  of  the  right  not  one  "wTiich  causes  injury 
to  the  supporting  land  or  building,  but  the  dependence  of  a 
building  on  such  support  is  a  fact  which  is  in  most  cases 
not  discoverable  until  the  support  is  withdrawn. ^^      In  Eng- 

52  White  V.  Chapin.  12  Allen  (Mass.)  516;  Schnitzius  v.  Bailey. 
48  N.  J.  Eq.  409.     See  Leidlein  v.  Meyer,  95  Mich.  586. 

53  Louisville  &  N.  Ry.  Co.  v.  Mossman,  90  Tenn.  157. 

51  Parker  v.  Foote,  19  Wend.  (N.  Y.)  309,  3  Gray's  Cas.  187;  Hub- 
bard V.  Town.  33  Vt.  295,  Finch's  Cas.  840;  Keats  v.  Hugo,  115  Mass. 
204.  15  Am.  Rep.  80;  Western  Granite  &  Marble  Co.  v.  Knicker- 
bocker, 103  Cal.  Ill;  Lahere  v.  Luckey,  23  Kan.  534;  Mullen  v. 
Strieker,  19  Ohio  St.  135,  2  Am.  Rep.  379;  Haverstick  v.  Sipe,  33 
Pa.  St.  368;  Guest  v.  Reynolds,  68  111.  478.  18  Am.  Rep.  570;  Powell 
V.  Sims,  5  W.  Va.  1,  13  Am.  Rep.  629;  Pierre  v.  Fernald,  26  Me. 
436,  46  Am.  Dec.  573;  Napier  v.  Bulwinkle,  5  Rich.  Law  (S.  C.)  311. 
Contra,  Clawson  v.  Primrose,  4  Del.  Ch.  643. 

55Richart  V.  Scott,  7  Watts   (Pa.)   460;   Mitchell  v.  City  of  Rome, 

(io;n) 


§   452  REAL  PROPERTY.  [Ch.  24 

land,  on  the  other  hand,  the  right  of  support  may  be  thus  ac- 
quired.^^  There  are  several  decisions  in  this  country  that 
a  right  in  the  use  of  a  party  wall  may  be  acquired  by  pre- 
scription,^"^ but  this  view,  while  clearly  correct  when  it  in- 
volves the  placing  of  beams  or  other  parts  of  a  building  in 
or  on  a  wall  upon  adjoining  land,  is,  it  seems,  in  other  cases 
not  involving  any  occupation  of  the  space  above  such  land, 
not  reconcilable  with  the  principle  that  the  user,  to  be  ad- 
verse, must  be  actionable,^*  nor  with  the  decisions  above  re- 
ferred to,  that  a  right  of  support  for  buildings  from  adjoin- 
ing land  or  buildings  cannot  be  acquired  by  prescription. 

§  452.     Rights  in  the  public. 

A  right  to  use  land  for  highway  purposes  may  usually  be 
acquired  by  the  public  by  its  use  for  such  purposes  under  a 
claim  of  right  for  the  statutory  period  of  limitation  as  to 
land.  Such  mode  of  acquisition  of  highway  rights  is  or- 
dinarily referred  to  as  ''prescription,"^'^  and  is  generally 
b^sed  on  the  theory  that  such  user  of  the  land  raises  the 
presumption  of  a  dedication,  or  of  an  appropriation  of  the 

49  Ga.  19,  15  Am.  Rep.  669;  Tunstall  v.  Christian,  80  Va.  1,  56  Am. 
Rep.  581;  Handlan  v.  McManus,  42  Mo.  App.  551;  Sullivaa  v.  Zeiner, 
98  Cal.  346.  See  Gilmore  v.  Driscoll,  122  Mass.  199,  207.  But  see 
City  of  Quincy  v.  Jones,  76  III.  231,  20  Am.  Rep.  243;  Lasala  v.  Hol- 
brook,  4  Paige  (N.  Y.)  169,  25  Am.  Dec.  524. 

56  Dalton  V.  Angus,  6  App.  Cas.  740;  Lemaitre  v.  Davis,  19  Ch. 
Div.  281. 

57  Schile  V.  Brockhahus,  80  N.  Y.  614;  Barry  v.  Edlavitch,  84  Md. 
95;  Dowling  v.  Hennings,  20  Md.  179;  Brown  v.  Werner,  40  Md.  15; 
MeVey  v.  Durkin,  136  Pa.  St.  418. 

.  58  See  McLaughlin  v.  Cecconi,  141  Mass.  252;  Whiting  v.  Gaylord, 
66  Conn.  337. 

59  If  prescription  is  to  be  regarded  as  necessarily  based  on  the 
presumption  of  a  grant,  the  term  is  not  accurate  as  applied  to  the 
case  of  a  highway,  since  highway  rights  are  created,  not  by  grant, 
but  by  dedication.  See  Angell,  Highways,  §  131.  The  fiction  of  a 
grant  can,  however,  not  be  regarded  as  an  integral  part  of  the  law 
of  prescription  in  this  country  at  the  present  day. 

(1032) 


Ch.24]  PRESCRIPTION.  §   452 

land  by  a  statutory  proceed iuii;.""  In  some  states  there  are 
statutory  provisions  in  regard  to  the  effect  of  user  by  the 
public  as  establishing  a  highway.^^  In  a  few  states,  even 
apart  from  statute,  the  mere  user  of  the  land  by  the  indi- 
viduals constituting  the  public,  without  any  adoption  of  the 
way  by  the  public  authorities,  is  insufficient  to  create  a  high- 
way. 

The  user  of  the  land  by  the  public  must  not  be  by  permis- 
sion merely  of  the  owner  of  the  land,  but  must  be  under  a 
claim  of  right,^^  and  the  fact  that  the  owner  of  the  land 
maintains  gates  across  the  way  is  regarded  as  strong  evi- 
dence that  the  use  by  the  public  is  merely  permissive.^^  The 
fact,  moreover,  that  the  land  is  vacant  and  uninclosed  has 
been  regarded  as  strong,  and  sometimes  as  conclusive,  proof 
that  the  user  was  permissive.^^  The  user  must  be  in  a  fixed 
and  definite  line  for  the  whole  of  the  statutory  period. ^^ 

«oReed  V.  Inhabitants  of  Northfield,  13  Pick.  (Mass.)  94,  23  Am. 
Dec.  662,  3  Gray's  Cas.  808;  Onstott  v.  Murray,  22  Iowa,  457;.  Willey 
V.  Portsmouth,  35  N.  H.  303;  Howard  v.  State,  47  Ark.  431;  Com. 
V.  Cole,  26  Pa.  St.  187;  Daniels  v.  People,  21  111.  439;  Schwerdtle  v. 
Placer  County,  108  Cal.  589;  Thomas  v.  Ford,  63  Md.  346,  52  Am. 
Rep.  513;  3  Kent's  Comm.  451;  Elliott,  Roads  &  S.  c.  6. 

61  See  Freshour  v.  Hihn,  99  Cal.  443 ;  Strong  v.  Makeever,  102 
Ind.  578;  Elfelt  v.  Stillwater  St.  Ry.  Co.,  53  Minn.  68;  Speir  v. 
Town  of  New  Utrecht,  121  N.  Y.  420;  Stewart  v.  Frink,  94  N.  C. 
487;  Com.  v.  Kelly,  8  Grat.  (Va.)  632;  Dicken  v.  Liverpool  Salt  & 
Coal  Co.,  41  W.  Va.  511. 

02  piummer  v.  Ossipee,  59  N.  H.  55;  Hougham  v.  Harvey,  40  Iowa, 
634;  White  v.  Wiley,  59  Hun,  618,  13  N.  Y.  Supp.  205;  Sharp  v. 
Mynatt,  1  Lea  (Tenn.)  375;   City  of  Ottawa  v.  Yentzer,  160  111.  509. 

03  Harper  v.  State,  109  Ala.  66;  Smithers  v.  Fitch,  82  Cal.  153; 
Johnson  v.  Stayton,  5  Har.  (Del.)  448;  Shellhouse  v.  State,  110  Ind. 
509;  Jones  v.  Phillips,  59  Ark.  35. 

'■+City  of  Ottawa  v.  Yentzer,  160  111.  509;  Hutto  v.  Tindall,  6 
Rich.  Law  (S.  C.)  396;  Cunningham  v.  San  Saba  County,  1  Tex. 
Civ.  App.  480;  Graham  v.  Hartnett,  10  Neb.  517;  State  v.  Horn,  35 
Kan.  717.     See  Ely  v.  Parsons,  55  Conn.  83. 

03  Friel  v.  People,  4  Colo.  App.  259;  Gentleman  v.  Soule,  32  111. 
271,  83  Am.  Dec.  264;  Schroeder  v.  Village  of  Onekama,  95  Mich. 
25;  South  Branch  R.  Co.  v.  Parker,  41  N.  J.  Eq.  489. 

(1033) 


CHAPTER  XXV. 

ACCRETION. 

§  453.     General  considerations. 

454.  Apportionment  of  accretions. 

455.  Islands. 

The  owner  of  land  upon  a  stream  or  body  of  water  is  entitled 
to  such  other  land  as  may  be  added  thereto  by  "accretion," — 
that  is,  by  the  gradual  and  imperceptible  formation  of  land 
adjacent  thereto  by  alluvial  deposits.  Such  owner,  on  the  other 
hand,  loses  so  much  of  his  land  as  may  be  gradually  washed 
away,  or  upon  which  the  water  may  gradually  encroach.  A 
sudden  and  perceptible  change  does  not  affect  the  ownership  of 
a  particular  part  of  the  soil. 

An  island  formed  by  alluvial  deposits  belongs  to  the  owner 
of  the  land  on  which  it  is  formed. 

§  453.     General  considerations. 

When  the  line  between  water  and  the  land  bordering  there- 
on is  changed  by  the  gradual  deposit  of  alluvial  soil  upon 
the  margin  of  the  water,  or  by  the  gradual  recession  of  the 
water,  the  owner  of  the  land  becomes  entitled  to  the  new 
land  thus  formed;^   and,  conversely,  in  case  laud  bordering 

1  Rex  V.  Yarborougli,  3  Barn.  &  C.  91;  GifEord  v.  Yarborough,  5 
Bing.  163,  3  Gray's  C.as.  9;  Coulthard  v.  Stevens,  84  Iowa,  241,  35 
Am.  St.  Rep.  304,  and  note;  Jefferis  v.  East  Omaha  Land  Co.,  134 
U.  S.  178;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Ramsey,  53  Ark.  314,  22 
Am.  St.  Rep.  195;  Saunders  v.  New  Yorlc  Cent.  &  Hudson  River  R. 
Co.,  144  N.  Y.  75;  Linthicum  v.  Coan,  64  Md.  439,  454;  Mulry  v. 
Norton,  100  N.  Y.  426,  53  Am.  Rep.  206;  Gill  v.  Lydick,  40  Neb.  508; 
Hagan  v.  Campbell,  8  Port.  (Ala.)  9,  33  Am.  Dec.  267,  and  note;  Chi- 

(1034) 


Ch.  25]  ACCRETION.  <   45.; 

on  water  is  gradually  washed  away,  or  the  water  otlicrwise 
encroaches  upon  the  land,  the  OAAmer  loses  the  land  which 
has  thus  been  encroached  on  by  the  water,  unless  he  retains 
its  ownership  as  having  previously  been  entitled  to  the  land 
under  the  water.-  These  principles  may  be  otherwise  ex- 
pressed by  the  statement  that,  if  a  person  owns  the  land  un- 
der a  particular  body  of  water,  or  under  a  particular  por- 
tion thereof,  or  land  adjoining  such  water,  he  continues  to 
own  the  land  answering  to  such  description,  although,  owing 
to  a  gi'adual  change  in  the  location  of  the  water,  the  land  so 
described  does  not  remain  the  same.  So,  if  a  stream  bound- 
ed on  both  sides  by  land  belonging  to  A.,  who  also  owns  the 
bed  of  the  stream,  gradually  changes  its  bed  so  as  to  encroach 
upon  the  land  of  B.,  the  land  covered  by  the  stream  in  its 
new  location  ceases  to  belong  to  B.,  and  becomes  the  property 
of  A.^  And  if  the  middle  line  of  a  stream  is  the  boundary 
between  the  lands  of  different  owners,  it  remains  the  bound- 
ary, although  the  line  itself  changes  as  a  result  of  a  gradual 
change  in  the  location  of  the  stream.^  A  different  rule  has, 
however,  been  applied  in  the  case  of  laud  bounded  on  a  pri- 
vate pond  belonging  exclusively  to  another,  it  being  held 
that  the  boundary  is  in  such  case  a  fixed  line,  and  does  not 
follow  changes  in  the  margin  of  the  water.^ 

cago  Dock  &  Canal  Co.  v.  Kinzie,  93  111.  415;  Minto  v.  Delaney,  7 
Or.  337;  Fillmore  v.  Jennings,  78  Cal.  634. 

2  In  re  Hull  &  Selby  Ry.  Co.,  5  Mees.  &  W.  327,  3  Gray's  Cas.  15; 
Cox  V.  Arnold,  129  Mo.  337,  50  Am.  St.  Rep.  450;  Wilson  v.  Shive- 
ley,  11  Or.  215;  Bouvier  v.  Stricklett,  40  Neb.  792;  Warren  v.  Cham- 
bers, 25  Ark.  120,  4  Am.  Rep.  23;  Town  of  East  Hampton  v.  Kirk, 
84  N.  Y.  218;  Gould,  Waters,  §  155. 

3  Foster  v.  Wright,  4  C.  P.  Div.  438,  3  Gray's  Cas.  17;  Welles  v. 
Bailey,  55  Conn.  292,  3  Am.  St.  Rep.  48. 

4  Nebraska  v.  Iowa,  143  U.  S.  359;  Niehaus  v.  Shepherd,  26  Ohio 
St.  40;  Welles  v.  Bailey,  55  Conn.  292,  3  Am.  St.  Rep.  48;  Gerrish  v. 
Clough,  48  N.  H.  9. 

-  Cook  V.  McClure,  58  N.  Y.  437,  17  Am.  Rep.  270,  3  Gray's  Cas. 

(1035) 


§   453  REAL  PROPERTY.  [(Jh.   25 

The  title  to  the  land  acquired  by  accretion  is  subject  to 
any  incumbrances  or  rights  in  other  persons  to  which  the 
land  to  which  the  accretion  is  made  is  subject.  Consequent- 
ly it  may  become  subject  to  a  lien,^  an  easement,'^  an  out- 
standing lease,^  and,  if  the  statute  of  limitations  has  partial- 
ly run  against  the  owner's  right  to  recover  the  land  originally 
existing,  his  right  to  recover  the  newly-formed  land  is  lia- 
ble to  be  barred  within  the  same  time.^ 

The  owner  of  an  island  is  entitled  to  land  added  thereto 
by  accretion  to  the  same  extent  as  the  owner  of  land  on  the 
bank  or  shore  of  the  mainland. ^^  And  in  case  accretions  to 
the  island  and  to  the  mainland  eventually  meet,  the  owner 
of  each  owns  the  accretions  to  the  line  of  contact.^ ^ 

The  rules  above  stated  to  the  effect  that  the  ownership  fol- 
lows changes  in  the  location  of  the  water  do  not  apply  in 
the  case  of  sudden  and  perceptible  changes,  and  such  changes, 
whether  the  land  encroaches  on  the  water  or  the  water  en- 
croaches on  the  land,  effect  no  change  in  the  ownership  of 
any  particular  portion  of  the  soil.-^^     And  so,  if  the  middle 

437.  See  Eddy  v.  St.  Mars,  53  Vt.  462;  Noyes  v.  Collins,  92  Iowa, 
566. 

6  Cobb  V.  Lavalle,  89  111.  331,  31  Am.  Rep.  91. 

'Town  of  Freedom  v.  Norris,  128  Ind.  377;  People  v.  Lambier,  5 
Denio  (N.  Y.)  9,  47  Am.  Dec.  273. 

«  Cobb  V.  Lavalle,  89  111.  331,  31  Am.  Rep.  91;  Williams  v.  Baker, 
41  Md.  523. 

9  Bellefontaine  Improvement  Co.  v.  Niedringbaus,  181  111.  426,  72 
Am.  St.  Rep.  269;  Benne  v.  Miller,  149  Mo.  228. 

10  St.  Louis  v.  Rutz,  138  U.  S.  226;  Benson  v.  Morrow,  61  Mo.  345; 
Bigelow  v.  Hoover,  85  Iowa,  161,  39  Am.  St.  Rep.  296;  Naylor  v. 
Cox,  114  Mo.  232. 

11  Hahn  v.  Dawson,  134  Mo.  581;  Bigelow  v.  Hoover,  85  Iowa,  161, 
19  Am.  St.  Rep.  296;  Bellefontaine  Improvement  Co.  v.  Niedring- 
haus,  72  Am.  St.  Rep.  283,  note. 

12  St.  Louis  V.  Rutz,  138  U.  S.  226;  Nebraska  v.  Iowa,  143  U.  S. 
359;  Vogelsmeier  v.  Prendergast,  137  Mo.  271;  Coulthard  v.  Davis, 
101  Iowa,  625;  Den  d.  Lynch  v.  Allen,  20  N.  C.  62,  32  Am.  Dec.  672; 
Bouvier  v.  Stricklett,  40  Neb.  792. 

(1036) 


Ch.   25]  ACCRETION.  i^  454 

line  of  a  stream  is  the  boniulary  line  between  two  owners, 
the  boundary  line  remains  the  same,  although,  owing  to  a 
sudden  change  in  the  location  of  the  stream,  that  line  ceases 
to  be  the  middle  line  of  the  stream.^  ^  The  distinction  be- 
tween the  gradual  and  the  sudden  change,  on  which  the  dif- 
ference in  the  resulting  rights  is  based,  is  dependent  on  the 
question  whether,  in  the  particular  case,  the  actual  process 
of  change  is  perceptible,  and  it  is  not  to  be  regarded  as  sud- 
den, rather  than  gradual,  merely  because,  at  distinct  periods 
of  time,  one  may  be  able  to  see  that  a  change  has  taken 
place.  ^'^ 

§  454.     Apportionment  of  accretions. 

When  land  is  formed  by  accretion  adjacent  to  land  owned 
by  several  contiguous  riparian  or  littoral  owners,  the  rule 
usually  adopted  for  the  apportionment  of  the  land  so  formed 
is  to  divide  the  new  shore  line  among  the  proprietors  in  pro- 
portion to  their  respective  rights  in  the  old  shore  line,  and 
to  draw  lines  from  the  points  of  division  thus  made  in  the 
new  shore  line  to  the  points  at  which  the  old  shore  line  is 
intersected  by  the  boundaries  separating  the  proprietors.-'"'' 
A  different  rule  has,  however,  been  adopted  in  at  least  one 
state,  as  applicable  when  the  ownership  of  the  bed  of  the 

13  Buttenuth  v.  St.  Louis  Bridge  Co.,  123  III.  535,  5  Am.  St.  Rep. 
545;  Bouvier  v.  Stricklett,  40  Neb.  792;  Rees  v.  McDaniel,  115  Mo. 
145. 

ujefferis  v.  East  Omaha  Land  Co.,  134  U.  S.  178;  Nebraska  v. 
Iowa,  143  U.  S.  359;  Coulthard  v.  Stevens,  84  Iowa,  241,  35  Am.  St. 
Rep.  304;  Warren  v.  Chambers,  25  Ark.  120,  4  Am.  Rep.  24;  Cam- 
den &  Atlantic  Land  Co.  v.  Lippincott,  45  N.  J.  Law,  405;  Halsey 
V.  McCormick,  18  N.  Y.  147;  Saunders  v.  New  York  Cent.  &  Hudson 
River  R.  Co.,  144  N.  Y.  75. 

15  Inhabitants  of  Deerfield  v.  Arms,  17  Pick.  (Mass.)  41,  3  Gray's 
Cas.  22;  Batchelder  v.  Keniston,  51  N.  H.  496,  12  Am.  Rep.  143; 
Johnston  v.  Jones,  1  Black  (U.  S.)  209.  See  Mulry  v.  Norton,  100 
N.  Y.  424,  53  Am.  Rep.  206. 

(1037) 


§  455  REAL  PROPERTY.  [Ch.    25 

river  is  in  the  riparian  proprietors,  to  the  oti'ect  that  their 
boundary  lines  are  to  be  extended  from  tlie  old  shore  line 
to  the  new  line  at  right  angles  to  the  center  line  of  the 
river.^^  "Whatever  be  the  general  rule  adopted  in  this  regard 
in  a  particular  jurisdiction,  it  will,  it  seems,  be  varied  in 
particular  cases  in  view  of  peculiar  circumstances  which  may 
arise. -^^ 

§  455.     Islands. 

An  island,  when  formed  in  a  stream  or  body  of  water  by 
the  deposit  of  alluvial  matter  therein,  belongs  to  the  owner 
of  the  land  beneath  the  water,  on  which  the  island  is  formed, 
whether  such  owner  be  the  state  or  an  individual.^*  So,  if 
the  island  is  on  both  sides  of  a  line  dividing  the  lands  of 
different  owners,  the  island  belongs  to  both  owners.^^      An 

16  Miller  v.  Hepburn,  8  Bush  (Ky.)  326,  3  Gray's  Cas.  26. 

In  Illinois  it  has  been  decided  that  the  thread  or  middle  line  of 
the  river  is  to  be  divided  proportionately  between  the  riparian  pro- 
prietors, and  the  boundary  lines  are  to  be  extended  to  the  division 
points  so  made.     Kehr  v.  Snyder,  114  111.  313,  55  Am.  Rep.  866. 

17  Kehr  v.  Snyder,  114  111.  313,  55  Am.  Rep.  866;  Thornton  v. 
Grant,  10  R.  I.  477,  14  Am.  Rep.  701;  Batchelder  v.  Keniston,  51 
N.  H.  496,  12  Am.  Rep.  143. 

This  question  of  the  apportionment  of  alluvion  between  the  dif- 
ferent riparian  owners  is  analogous  to  that  of  the  apportionment  of 
the  '"flats"  or  shore  among  the  owners  of  the  uplands,  in  eases  in 
which  the  state  has  relinquished  the  ownership  of  such  flats.  See 
Gould.  Waters,  §  162;  Com.  v.  City  of  Roxbury,  9  Gray  (Mass.) 
451,  reporter's  note  521;  Wonson  v.  Wonson,  14  Allen  (Mass.)  85; 
Thornton  v.  Grant,  10  R.  I.  477,  14  Am.  Rep.  701. 

IS  Perkins  v.  Adams,  132  Mo.  131;  Cox  v.  Arnold,  129  Mo.  337,  50 
Am.  St.  Rep.  450;  St.  Louis  v.  Rutz,  138  U.  S.  226;  Mulry  v.  Nor- 
ton, 100  N.  Y.  426,  53  Am.  Rep.  212;  Trustees  of  Hopkins  Academy 
V.  Dickinson,  9  Cush.  (Mass.)  548;  McCullough  v.  Wall.  4  Rich. 
Law  (S.  C.)  68,  53  A.m.  Dec.  715;  Middleton  v.  Pritchard.  4  111.  510, 
38  Am.  Dec.  112. 

m  Trustees  of  Hopkins  Academy  v.  Dickinson.  9  Cush.  (Mass.) 
548;  3  Kent's  Comm.  428. 

(10:'.8) 


Ch.  25|  ACCRETION.  t^   455 

island  formed  by  a  sudden  cliaiiiic  in  the  course  of  a  stream, 
or  by  a  sudden  encroachment  of  the  sen,  the  soil  remaining 
as  before,  except  that  it  is  separated  by  a  channel  from  the 
main  land,  does  not  change  its  ownership.-" 

20  Trustees  of  Hopkins  Academy   v.   Dickinson,   9   Cush.    (Mass.) 
544;  Bonewits  v.  Wygant,  75  Ind.  41;  Gould.  Waters,  §  166. 

(1039) 


CHAPTEE  XXVI. 

ESTOPPEL. 

§  456.     Transfer  of  after-acquired  title. 
457.     Estoppel  by  representation. 

In  this  country,  a  conveyance  of  land,  with  a  covenant  of 
warranty,  and  occasionally  with  other  covenants,  is  regarded 
as  passing  any  title  or  interest,  which  the  scope  of  such  convey- 
ance, which  the  grantor  may  thereafter  acquire.  Such  a  doc- 
trine has  never  been  recognized  in  England  except  in  the  case 
iof  feoffments,  fines,  and  recoveries,  and,  to  a  limited  extent, 
leases. 

The  doctrine  of  estoppel  by  representation,  so  far  as  it  may 
prevent  the  owner  of  land,  who  represents,  either  expressly 
or  tacitly,  the  title  to  be  in  another,  from  thereafter  denying 
the  truth  of  the  representation,  in  effect  transfers  the  title. 
In  some  states  the  doctrine  is  applicable  in  connection  with 
land  only  when  the  representation  was  fraudulent,  and  then 
only  in  equity. 

§  456.     Transfer  of  after-acquired  title. 

At  common  law,  a  transfer  of  land  by  feoffment,  fine,  or 
common  recovery  operated  to  transfer  to  the  transferee  all 
estates  or  interests  which  might  be  subsequently  acquired  by 
the  transferrer,  in  case  he  did  not,  at  the  time  of  making  the 
assurance,  have  such  an  estate  as  be  purported  to  transfer.-' 

1  Bigelow,  Estoppel  (5th  Ed.)  385,  414-419;  Rawle,  Covenants  for 
Title  (5tli  Ed.)  §  243;  Doe  d.  Christmas  v.  Oliver,  10  Barn.  &  C. 
181,  3  Gray's  Gas.  739;  Sturgeon  v.  Wingfield,  15  Mees.  &  W.  224,  3 
Gray's  Cas.  745. 

(1040) 


Ch.   26J  ESTOPPEL.  §  456 

A  lease  had  a  partially  similar  effect,  in  that,  if  the  lessor 
did  not  have  any  title  at  the  time  of  making  the  lease,  a  title 
subsequently  obtained  by  him  passed  thereunder,  though  this 
was  not  the  case  if  he  had  some  title  at  the  date  of  the  lease. ^ 
Other  conveyances  than  those  mentioned  had  no  such  effect 
of  passing  an  after-acquired  title  at  common  law,  nor  have 
the}^  in  England  at  the  present  day.^  It  is,  however,  recog- 
nized in  England,  as  in  this  country,  that,  if  a  conveyance 
purports  to  transfer  a  certain  estate,  whether  this  appears 
from  recitals,  covenants,  or  any  other  part  of  the  conveyance, 
the  grantor  himself  is  estopped  thereafter  to  deny  that  such 
an  estate  did  pass,  or  to  claim  the  land  under  a  title  subse- 
quently acquired  by  him.* 

To  support  this  view,  there  is  not,  it  is  evident,  any  neces- 
sity for  holding  that  the  subsequently-acquired  title  passes  to 
the  grantee,  the  estoppel  being  merely  personal  as  against 
the  grantor,  and  being  but  an  application  of  the  common-law 
principle  that  a  party  to  a  deed  cannot  contradict  or  disprove 
any  declaration  or  averment  therein.  In  this  country,  how- 
ever, there  are  many  decisions  to  the  effect  not  only  that  the 

2  Co.  Litt.  47b;  Bigelow,  Estoppel,  390,  420;  Williams,  Real  Prop. 
(18th  Ed.)  476;  Doe  d.  Strode  v.  Seaton,  2  Cr'omp.,  M.  &  R.  728; 
Trevivan  v.  Lawrence,  1  Salk.  276. 

3  Williams,  Real  Prop.  (18th  Ed.)  476;  Rawle,  Covenants  for 
Title    (5th   Ed.)    §§   244,   246,   262;    Bigelow,   Estoppel,   423   et   seq.; 

2  Smith,  Lead.   Cas.  839;    Right  v.   Bucknell,  2   Barn.  &  Adol.  278, 

3  Gray's  Cas.  741;  General  Finance,  Mortgage  &  Discount  Co.  v. 
Liberator  Permanent  Benefit  Bldg.  Soc,  10  Ch.  Div.  15. 

4  Rawle,  Covenants  for  Title  (5th  Ed.)  §§  245,  255;  Bigelow, 
Estoppel,  395;  Goodtitle  v.  Bailey,  Cowp.  601;  2  Smith,  Lead.  Cas. 
Eq.  854;  Right  v.  Bucknell,  2  Barn.  &  Adol.  278,  3  Gray's  Cas.  741; 
Van  Rennsselaer  v.  Kearney,  11  How.  (U.  S.)  297;  Clark  v.  Baker, 
14  Cal.  629,  76  Am.  Dec.  449;  Taggart  v.  Risley,  4  Or.  235;  Wells 
V.  Steckelberg,  52  Neb.  597;  Reynolds  v.  Cook,  83  Va.  817,  5  Am. 
St.  Rep.  317;  Pendill  v.  Marquette  County  Agricultural  Soc,  95 
Mich.  491. 

(1041) 

Real  Prop.— 66. 


§   456  REAL  PROPERTY.  [Ch.   26 

grantor  in  a  conveyance  is  estopped  to  deny  that  it  passed  the 
estate  which  it  piirported  to  pass,  but  also  that  it  actually 
passes,  by  way  of  estoppel,  any  title  which  the  grantor  may 
thereafter  acquire  in  the  land,  if  this  is  within  its  apparent 
scope,  and  especially  if  it  contains  certain  covenants  of 
title.^  There  are,  moreover,  in  a  number  of  states,  statutory 
provisions  to  this  effect.^ 

For  most  purposes,  the  question  whether  there  is  merely 
a  personal  estoppel  on  the  grantor  to  assert  the  after-acquired 
title,  or  whether  such  title  actually  passes  under  the  convey- 
ance, is  immaterial.  The  distinction  between  the  two  views 
is,  however,  important  in  two  respects:  First,  as  between 
the  grantor  and  grantee,  the  effect  of  the  application  of  the 
rule,  without  exception,  that  a  conveyance  containing  cove- 
nants of  title  operates  to  pass  an  after-acquired  estate,  would 
be  that  a  covenantee  would  be  compelled  to  take  such  an 
estate,  and  would  not  have  the  option  of  refusing  so  to  do, 
and  of  recovering  full  damages  on  the  covenant.  Recog- 
nizing the  injustice  of  such  a  result,  it  has  usually  been  held 
that  the  covenantee  has  such  an  option,  and  is  not  compelled 
to  accept  the  after-acquired  estate  in  partial  or  total  satis- 
faction of  the  covenant.'  The  other  and  more  important 
result  of  the  distinction  is  that,  if  the  covenant  effects  mere- 
ly a  personal  estoppel  on  the  covenantor,  a  person  to  whom 
he  subsequently  conveys  the  after-acquired  estate  is  not  af- 
fected thereby,  while,  if  the  covenant  operates  as  an  actual 

5  Rawle,  Covenants  for  Title  (5th  Ed.)  §  248,  and  the  numerous 
cases  there  cited;  Bigelow,  Estoppel,  429;  2  Smith,  Lead.  Cas.  Eq. 
838;  11  Am.  &  Eng.  Enc.  Law,  418. 

6  1  Stimson,  Am.  St.  Law,  §  1454;  Rawle,  Covenants  for  Title 
(5th  Ed.)  §  249. 

7  Rawle,  Covenants  for  Title  (5th  Ed.)  §  258;  Bigelow,  Estoppel, 
435;  Blanchard  v.  Ellis,  1  Gray  (Mass.)  193,  3  Gray's  Cas.  755; 
Tucker  v.  Clark,  2  Sandf.  Ch.  (N.  Y.)  96;  Burton  v.  Reeds,  20  Ind. 
87;  Noonan  v.  Ilsley,  21  Wis.  139. 

(1042) 


Ch.  26]  ESTOPPEL.  §  456 

transfer  of  the  subsequently-acquired  estate,  it  does  so  as 
against  any  person  to  whom  the  covenantor  attempts  to  con- 
vey such  estate;^  and  this  it  does,  it  has  been  held  in  some 
cases,  although  such  subsequent  grantee  is  a  purchaser  for 
value,  and  without  actual  notice  of  the  prior  transfer,  or  any 
convenient  means  of  acquiring  notice.  These  decisions  can 
more  conveniently  be  considered  hereafter  in  connection  with 
the  recording  acts,  to  the  spirit  and  policy  of  which  they 
seem  to  be  opposed.^ 

Many  of  the  decisions  which  adopt  the  view  that  the  con- 
veyance operates  to  transfer  the  after-acquired  title  are  based 
upon  the  theory  that  circuity  of  action  is  thereby  avoided, 
the  title  itseK  being  given  to  the  grantee,  instead  of  compel- 
ling him  to  sue  for  damages  caused  by  the  want  of  such 
title.  But,  as  before  stated,  so  far  as  the  estoppel  of  the 
grantor  himself  is  concerned,  the  presence  of  a  covenant  is 
immaterial  ;^^  and,  as  shown  by  an  able  writer,  even  when 
there  are  covenants,  the  estoppel  frequently  operates,  although 
there  is  no  right  of  action  on  a  covenant. ^^  This  theory, 
therefore,  however  satisfactory  it  may  be  in  many  cases, 
does  not  serve  to  explain  the  decisions  as  a  whole,  and,  as 

sRawle,  Covenants  for  Title  (5th  Ed.)  §  259;  Bigelow,  Estoppel, 
413  et  seq. 

0  Post,  §  476. 

10  See  authorities  cited  ante,  note  4. 

iiRawle,  Covenants  for  Title  (5th  Ed.)  §  251,  where  the  fol- 
lowing cases  in  which  the  estoppel  has  been  held  to  act  in  the  ab- 
sence of  any  liability  on  the  covenants  are  enumerated:  (1)  When 
the  estoppel  is  sought  to  be  enforced  against  a  purchaser  of  the 
subsequently-acquired  title,  and  not  against  the  grantor  himself; 
(2)  when  a  married  woman  is  estopped  (in  some  states)  to  claim 
after-acquired  property,  though  not  liable  on  the  covenant;  (3) 
when  the  state  is  held  to  be  estopped,  though  not  liable  on  the 
covenant;  (4)  when  the  grantor  is  estopped,  though  exempt  from 
liability  on  the  covenant,  owing  to  a  discharge  in  bankruptcy;  and 
(5)  when  he  is  estopped,  though  the  claim  on  the  covenant  is  barred 
by  limitations. 

(1043) 


§   456  REAL  PROPERTY.  [Ch.   26 

stated  by  the  same  authority,  the  only  satisfactory  theory  on 
which  they  can  be  explained  is  that  they  are  merely  applying 
under  common-law  forms,  the  equitable  principle  that,  where 
one  purports  to  convey  a  good  title  to  another,  and  after- 
wards acquires  the  same  land  under  another  title,  he  may  be 
compelled  to  convey  to  such  other  the  title  so  acquired, — a  rule 
which,  however,  was  never  enforced  in  equity  as  against  a 
bona  fide  purchaser  from  the  grantor  of  the  land  so  subse- 
quently acquired.^  ^ 

In  pursuance  of  the  theory,  frequently  asserted,  that  the 
estoppel  arises  in  a  particular  case  from  the  presence  of  a 
covenant  in  the  conveyance,  and  to  prevent  circuity  of  ac- 
tion, the  cases  sometimes  distingaiish  as  between  particular 
covenants  in  this  respect.  Thus,  a  covenant  of  warranty  is 
always  regarded  as  effective  for  this  purpose,^  ^  frequently  as 
a  result  of  a  mistaken  application  of  the  doctrine  of  warranty 
at  common  law,  and  the  same  effect  has  been  given  to  a  cov- 
enant for  quiet  enjoyment,^*  while  it  has,  in  some  states, 
been  denied  to  a  covenant  for  seisin  or  for  good  right  to  con- 
vey. ^^ 

There  can  be  no  estoppel  as  to  an  after-acquired  title  when 
the  conveyance  undertakes  to  transfer  merely  such  an  estate  or 

i2Rawle,  Covenants  for  Title  (5th  Ed.)  §  264. 

13  Doe  d.  Potts  V.  Roe,  3  Houst.  (Del.)  369',  11  Am.  Rep.  757; 
Childs  V.  McChesney,  20  Iowa,  431,  89  Am.  Dec.  545;  Knight  v. 
Thayer,  125  Mass.  25;  Morris  v.  Jansen,  99  Mich.  436;  Moore  v. 
Rake,  26  N.  J.  Law,  574;  Broadwell  v.  Phillips,  30  Ohio  St.  255; 
Johnson  v.  Branch,  9  S.  D.  116;  Raines  v.  Walker,  77  Va.  95;  Fos- 
ter V.  Hackett,  112  N.  C.  546;  Walton  v.  Follansbee,  131  111.  147. 

1*  Smith  V.  Williams,  44  Mich.  240;  Long  Island  R.  Co.  v.  Conklin, 
29  N.  Y.  572.     See  Taggart  v.  Risley,  4  Or.  235. 

15  Allen  V.  Sayward,  5  Me.  227,  17  Am.  Dec.  221;   Doane  v.  Will- 
cutt,  5  Gray  (Mass.)   333,  66  Am.  Dec.  369;   Chauvin  v.  Wagner,  18 
Mo.  531.     Contra,  Wightman  v.  Reynolds,  24   Miss.   675.     And  see 
Irvine  v.  Irvine,  9  Wall.  (U.  S.)  618. 
(1044) 


Ch.  26] 


ESTOPPEL.  S  457 


interest  as  the  grantor  has/*^  and  the  fact  that  such  a  convey- 
ance contains  covenants  for  title  does  not  change  its  character 
in  this  respect.^ '^  If  the  conveyance  is  not  of  a  limited  interest 
merely,  or  of  such  interest  only  as  the  grantor  has,  the  fact 
that  the  covenant  is  special — ^that  is,  against  the  acts  only  of 
the  grantor  and  those  claiming  under  him — does  not  affect 
its  operation  by  way  of  estoppel.^® 

?  457.    Estoppel  by  representation. 

In  connection  v^ith  the  law  of  land  there  is  frequent  occa- 
sion for  the  application  of  the  familiar  principle  that  one 
who,  by  his  words  or  actions,  represents  a  certain  state  of 
facts  to  be  true^  and  thereby  induces  another  to  act  to  his  det- 
riment, is  precluded  from  thereafter  denying  the  existence 
of  such  a  state  of  facts.  So  it  has  frequently  been  decided  that 
if  one,  having  title  to  land,  openly  disclaims  any  rights  there- 
in,^ ^  or  fails  to  assert  his  rights,^^  and  thereby  causes  one, 
ignorant  of  the  true  state  of  the  title,  to  purchase  the  land 
from  a  third  person,  he  cannot  thereafter  assert  any  claim  to 

16  Quivey  v.  Baker,  37  Cal.  465;  Benneson  v.  Aiken,  102  111.  284,  40 
Am.  Rep.  592;  Harriman  v.  Gray,  49  Me.  537;  Fay  v.  Wood,  65  Mich. 
390;  Gibson  v.  Chouteau,  39  Mo.  536;  Perrin  v.  Perrin,  62  Tex. 
477;  Jourdain  v.  Fox,  90  Wis.  99. 

iTRawle,  Covenants  for  Title  (5th  Ed.)  §  250;  Blanchard  v. 
Brooks,  12  Pick.  (Mass.)  47;  Hanrick  v.  Patrick,  119  U.  S.  156,  175; 
Holbrook  v.  Debo,  99  111.  372;  Stephenson  v.  Boody,  139  Ind.  60. 

18  Kimball  v.  Blaisdell,  5  N.  H.  533,  3  Gray's  Cas.  761;  Gibbs  v. 
Thayer,  6  Cush.  (Mass.)  30;  Coal  Creek  Min.  &  Mfg.  Co.  v.  Ross,  12 
Lea  (Tenn.)  1.     But  see  Bennett  v.  Davis,  90  Me.  457. 

isDickerson  v.  Colgrove,  100  U.  S.  578;  Keys  v.  Test,  33  111.  316; 
Blodgett  V.  McMurtry,  34  Neb.  782;  Coogler  v.  Rogers,  25  Fla.  853; 
Mayer  v.  Ramsey,  46  Tex.  371. 

20  Bryan  v.  Ramirez,  8  Cal.  461,  68  Am.  Dec.  340;  Hatch  v.  Kim- 
ball, 16  Me.  146;  Brown  v.  Union  Depot  St.  Ry.  &  Transfer  Co.  of 
Stillwater,  65  Minn.  508;  Guffey  v.  O'Reiley,  88  Mo.  418.  57  Am. 
Rep.  424;  Thompson  v.  Sanborn,  11  N.  H.  201,  35  Am.  Dec.  490; 
Marines  v.  Goblet,  31  S.  C.  153,  17  Am.  St.  Rep.  22.  ^ 

(1045) 


§  457  REAL  PROPERTY.  [Ch.  26 

the  land.  Likewise,  it  has  been  decided  that  the  true  owner 
of  land  who  stands  by  and  sees  another,  under  the  belief  that 
he  has  the  unincumbered  title  to  the  land,  make  expenditures 
for  improvements  thereon,  may  be  under  such  a  duty  to  in- 
form the  person  in  possession  of  the  true  state  of  the  title 
as  to  be  thereafter  estopped  from  asserting  any  rights  in  the 
land.^^  The  mere  failure  to  assert  one's  title,  without  any 
active  misrepresentation  in  regard  thereto,  will  not,  however, 
have  the  effect  of  an  estoppel,  if  the  title  appears  of  record, 
since  one  purchasing  or  improving  the  land  is  in  such  case 
charged  with  notice  of  the  true  state  of  the  title.^^  An  es- 
toppel of  this  character,  since  it  is  based  on  a  representation 
that  one  has  not  the  title  to  land,  and  not  that  he  has  title, 
has  of  course  no  effect  upon  a  title  afterwards  acquired  by 
the  person  making  the  representation.^^ 

This  class  of  estoppel,  though  frequently  spoken  of  as  "equi- 
table" estoppel,  is  ordinarily  recognized  and  enforced  in  courts 
of  law  as  well  as  in  equity.  But  though  the  principles  gov- 
erning in  this  class  of  cases  were  not  clearly  recognized  and 
formulated  under  that  name  until  the  nineteenth  century,^* 
before  this  there  existed  in  equity  a  doctrine  which  was  equiv- 
alent to  the  modern  doctrine  of  estoppel  by  representation,  to 

21  Kirk  V.  Hamilton,  102  U.  S.  68;  Bryan  v.  Pinney  (Ariz.)  31  Pac. 
548;  Gibson  v.  Herriott,  55  Ark.  85,  29  Am.  St.  Rep.  17;  Thomas  v. 
Pullis,  56  Mo.  211;  Dellett  v.  Kemble,  23  N.  J.  Eq.  58;  Redmond  v. 
Excelsior  Sav.  Fund  &  Loan  Ass'n,  194  Pa.  St.  643,  75  Am.  St.  Rep. 
714. 

22  Clark  V.  Parsons,  69  N.  H.  147,  76  Am.  St.  Rep.  157;  Brant  v. 
Virginia  Coal  &  Iron  Co.,  93  U.  S.  326,  337;  Tongue's  Lessee  v. 
Nutwell,  17  Md.  212,  79  Am.  Dec.  649;  Mayo  v.  Cartwright,  30  Ark. 
407;  Campbell  v.  Jacobson,  145  111.  389;  Staton  v.  Bryant,  55  Miss. 
261;  KnoufE  v.  Thompson,  16  Pa.  St.  357;  Blodgett  v.  Perry,  97  Mo. 
263,  10  Am.  St.  Rep.  307. 

23  Gluckauf  V.  Reed,  22  Cal.  468;  Davidson  v.  Dwyer,  62  Iowa,  332; 
Donaldson  v.  Hibner,  55  Mo.  492. 

24  Pickard  v.  Sears,  6  Adol.  &  E.  469  (A.  D.  1837). 

(1046) 


Ch.  26]  ESTOPPEL.  §  457 

the  effect  that  one  who  knowingly  makes  a  false  representation 
to  one  who  acts  on  it  is  bound  to  make  that  representation 
good  ;^^  and  a  similar  principle  was  also  involved  in  the  equi- 
table rule  that  the  fraudulent  failure  of  one  to  make  known 
his  title  to  a  person  about  to  purchase  the  land  from  another 
would  have  the  effect  of  changing  the  ordinary  rule  of  priori- 
ties, and  of  postponing  his  claim  to  that  of  the  purchaser.^^ 

There  has  been  very  great  difference  of  opinion  as  to  wheth- 
er the  misrepresentation,  whether  by  conduct  or  by  express 
statement,  must  be  fraudulent  in  order  to  give  rise  to  an  es- 
toppel of  this  character.  The  decided  weight  of  authority  is 
to  the  effect  that  it  need  not  be  such;^"  but  apart  from  the 
question  of  the  existence  of  such  a  requirement  in  other 
cases,  it  is  by  some  authorities  asserted  that,  in  order  that 
one  may,  by  reason  of  misrepresentations,  be  estopped  to  as- 
sert his  title  to  land,  he  must  have  been  guilty  of  fraud, 
since  the  application  of  the  doctrine  of  estoppel  by  repre- 
sentation involves  in  effect  a  transfer  of  land,  and  that  is, 
by  the  Statute  of  Frauds,  required  to  be  in  writing.^^  More- 
over, while,  as  a  general  rule,  an  estoppel  by  representation 
is  as  available  at  law  as  in  equity,  it  is,  by  the  decisions  of 
some  states,  not  available  at  law  when  the  title  to  land  is 
involved,  on  the  ground  that  at  law  the  Statute  of  Frauds 
must  control,  and  that  in  equity  only  can  the  case  be  regard- 
ed as  taken  out  of  the  statute  by  the  fraud,  actual  or  con- 
structive,  involved   in   the   misrepresentation.^^     The   view 

25  Evans  v.  Bicknell,  6  Ves.  174;  Bigelow,  Estoppel,  557. 

26  2  Pomeroy,  Eq.  Jur.  §§  686,  731;  Ewart,  Estoppel,  §  257. 

27  Bigelow,  Estoppel,  629,  note;  Ewart,  Estoppel,  83  et  seq. ;  2 
Pomeroy,  Eq.  Jur.  §§  805,  806;  11  Am.  &  Eng.  Enc.  Law  (2d  Ed.) 
431. 

28  Trenton  Banking  Co.  v.  Duncan,  86  N.  Y.  221;  Huyck  v.  Bailey, 
100  Mich.  223;  May  v.  Hanks,  62  N.  C.  310;  2  Pomeroy,  Eq.  Jur.  § 
807. 

20  Doe  d.  McPherson  v.  Walters,  16  Ala.  714;   Standifer  v.  Swann, 

(1047) 


§   457  REAL  PROPERTY,  [Ch.  26 

is,  however,  taken  in  most  jurisdictions,^"  that  an  estoppel 
may  be  asserted  at  law  as  well  as  in  equity. 

In  equity  the  person  in  favor  of  whom  the  owner  is  es- 
topped to  claim  the  land  is  entitled  to  a  conveyance  of  the 
land  by  the  owner, — that  is,  the  owner  may  be  compelled 
to  make  good  his  representations;^^  this,  as  before  stated, 
being  a  well-settled  equitable  doctrine  before  the  legal  de- 
velopment of  the  law  of  estoppel  under  that  name.^^  In 
determining,  therefore,  the  rights  of  the  person  to  assert  the 
estoppel  as  against  persons  other  than  the  person  who  was 
originally  guilty  of  the  misrepresentation,  the  former  should, 
it  seems,  be  regarded  as  standing  in  the  position  of  any  other 
person  having  an  equity  to  a  conveyance.  Consequently,  the 
estoppel  should  be  enforceable  as  against  any  subsequent 
owner  of  the  land,  as  would  any  other  equity,  until  the  land 
passes  to  a  bona  fide  purchaser  for  value.^^  This  view  has 
been  sometimes  applied,^^  though  frequently  the  subject  has 
been  confused  by  undertaking  to  determine  whether  the  sub- 
sequent owner  of  the  land  is  a  "privy"  of  a  person  orig- 
inally estopped. 

78  Ala.  88;  Hayes  v.  Livingston,  34  Mich.  384,  22  Am.  Rep.  533; 
Winslow  V.  Cooper,  104  III.  235;  Suttle  v.  Richmond,  F.  &  P.  R.  Co., 
76  Va.  284. 

30  Kirk  V.  Hamilton,  102  U.  S.  68;  Bigelow  v.  Foss,  59  Me.  164; 
Davis  V.  Davis,  26  Cal.  23;  Shaw  v.  Beebe,  35  Vt.  204;  Brown  v. 
Bowen,  30  N.  Y.  519;  Beaupland  v.  McKeen,  28  Pa.  St.  124;  Levy  v. 
Cox,  22  Fla.  546;   Bigelow,  Estoppel,  715. 

■"'1  Citizens'  Bank  of  Louisiana  v.  First  Nat.  Bank  of  New  Orleans, 
L.  R.  6  H.  L.  360;  Beatty  v.  Sweeney,  26  Mich.  217;  Favill  v.  Rob- 
erts, 50  N.  Y.  222. 

3-  Ante,  note  25. 

33  See  Ewart,  Estoppel,  196,  on  which  the  view  here  presented  is 
based. 

3*Rutz  v.  Kehn,  143  111.  558;  Southard  v.  Sutton,  68  Me.  575; 
Thistle  V.  Buford,  50  Mo.  278;  Ions  v.  Harbison,  112  Cal.  260;  Ram- 
boz  V.  Stowell,  103  Cal.  588;  Maxon  v.  Lane,  124  Ind.  592;  Stinch- 
field  V.  Emerson,  52  Me.  465,  83  Am.  Dec.  524;  Hodges  v.  Eddy,  41 
Vt.  485,  98  Am.  Dec.  612. 
(104S) 


CHAPTER  XXVII. 
ESCHEAT  AND  FORFEITURE. 

§  458.     Escheat. 
459.     Forfeiture. 

Upon  the  death  of  the  owner  of  land  intestate,  and  without 
legal  heirs,  the  land  passes  to  the  state  by  "escheat." 

Land  may  be  forfeited  to  the  state  in  particular  cases,  as 
when  an  alien  acquires  land  in  violation  of  law,  or,  occasion- 
ally, when  a  corporation  so  does. 

Land  may  be  forfeited  to  an  individual  for  breach  of  an 
express  or  implied  condition  subsequent. 

§  458.     Escheat. 

At  common  law,  as  before  stated,  an  escheat  of  land  oc- 
curred in  favor  of  the  feudal  lord  in  case  the  tenure  terminat- 
ed hj  reason  of  the  failure  of  inheritable  blood,  such  failure 
arising  from  the  corruption  of  the  blood  of  the  tenant  by  at- 
tainder of  felony,  as  well  as  from  the  death  of  the  tenant 
without  any  ascertainable  heir.^  In  this  country,  in  those 
states  in  which  tenure  is  to  be  regarded  as  nonexistent,^  the 
feudal  conception  of  escheat  cannot  obtain,  though  even  there 
the  right  of  the  state  to  land  the  owner  of  which  dies  in- 
testate without  heirs  would  no  doubt  be  sustained  as  an  at- 
tribute of  sovereignty.  Any  question  upon  the  subject, 
however,  is  avoided  in  most,  if  not  in  all,  the  states  by  stat- 
utory provisions  that,  upon  the  failure  of  other  heirs,  the 

1  2  Bl.  Comm.  244  et  seq.;  ante.  §  10. 

2  Ante,  §  14. 

(1049) 


§   459  REAL  PROPERTY.  [Ch.  27 

land  shall  pass  to  the  state.^     This  right  of  the  state  to  land 
in  default  of  heirs  is  ordinarily  spoken  of  as  "escheat." 

An  "escheat"  of  this  character  may  occur  in  states  where 
aliens  are  forbidden  to  hold  lands,  as  a  result  of  the  absence 
of  all  heirs  other  than  aliens,  and  likewise  owing  to  the  in- 
ability of  one,  otherwise  entitled  to  inherit,  to  trace  his  de- 
scent except  through  an  alien.'*  But  the  term  "escheat"  is 
not,  it  seems,  properly  applicable  to  the  forcible  acquisition 
by  the  state  of  land  which  an  alien  has,  in  violation  of  law, 
undertaken  to  acquire  by  purchase,  though  the  term  is  fre- 
quently so  used,  this  being  in  the  nature  of  the  enforcement 
of  a  forfeiture  by  the  state,  rather  than  an  escheat.^ 

§  459.     Forfeiture — To  state. 

At  common  law,  upon  his  attainder  of  high  treason,  one 
forfeited  to  the  crown  all  his  freehold  estates,  and,  in  case 
of  petit  treason  and  felony,  his  freehold  estates  for  life,  and 
his  chattel  interests  absolutely.^  In  this  country  the  effect 
of  a  conviction  of  crime  is  rarely  to  forfeit  all  the  land  of 
the  wrongdoer,  the  statutes  of  most  states  providing  ex- 
plicitly'that  no  conviction  of  crime  shall  work  forfeiture  of 
estate  or  corruption  of  blood,  though  in  two  or  three  there 
may,  it  seems,  be  a  forfeiture  of  estate  during  the  life  of  the 
offender.'^ 

If  an  alien  undertakes  to  acquire  land  in  violation  of  the 
law  of  the  particular  state,  he  may,  unless  protected  by  the 
terms  of  a  treaty  with  his  government,  be  deprived  of  such 
land,  and  a  forfeiture  to  the  state  be  compelled.^ 

3  1  Stimson's  Am.  St.  Law,  §§  400,  1151-1154,  3125. 

4  See  post,  §  505. 

5  See  2  Bl.  Comm.  274,  293;  2  Kent's  Comm.  61;  Read  v.  Read,  5 
Call  (Va.)  207. 

6  4  Bl.  Comm.  381-385. 

T  1  Stimson's  Am.  St.  Law,  §§  143,  1162. 
8  Post,  §  505. 

(1050) 


Ch.  27]  ESCHEAT   AND   FORFEITURE.  §   459 

During  the  American  Kevolution,  many  of  the  colonial 
governments  confiscated  the  lands  of  persons  supporting  the 
royal  cause,^  and,  during  the  Civil  War,  acts  confiscating  the 
property  of  persons  aiding  the  Confederate  cause  were  passed 
by  congress,  the  confiscation,  however,  in  the  case  of  land, 
being  limited  to  the  term  of  the  offender's  natural  life.^*^ 
The  confiscation  of  enemies'  property  is,  at  the  present  day, 
not  generally  approved  by  writers  on  international  law,  and 
is  not  practiced  in  wars  of  an  international  character.^  ^ 

Occasionally  the  statute,  in  restricting  the  power  of  a 
corporation  to  acquire  land,  provides,  expressly  or  implied- 
ly, that  land  acquired  by  the  corporation  in  violation  of  law 
shall  be  forfeited  to  the  state.-^^  In  the  absence  of  such  a 
provision  for  forfeiture,  though  the  state  may  annul  the 
transfer  or  dissolve  the  corporation,  it  does  not  have  any 
right  to  the  land  which  the  corporation  thus  wrongfully 
acquired.^  ^ 

Land  used  for  purposes  which  violate  the  internal  rev- 
enue laws  in  certain  ways  become  subject  to  forfeiture,  by 
express  provision  of  statute,  to  the  United  States  govern- 
ment.^ ^ 

At  common  law,  the  proceeding  on  the  part  of  the  state 
to  enforce  a  forfeiture  as  well  as  an  escheat  was  by  "ofiice 
found"  or  "inquest  of  office,"  this  being  a  proceeding,  by 
the  aid  of  a  jury,  which  was  made  use  of  in  any  cases  in 

9  Sabine,  Loyalists  of  American  Revolution,  75  et  seq. 

10  Jenkins  v.  Collard,  145  "U.  S.  546. 

11  Taylor,  International  Law,  §  540;  Lawrence's  Wheaton,  Internal. 
Law,  596  et  seq. 

12  See  Leazure  v.  Hillegas,  7  Serg.  &  R.  (Pa.)  313;  Com.  v.  New 
York,  L.  E.  &  W.  R.  Co.,  132  Pa.  St.  591.  139  Pa.  St.  457. 

13  National  Bank  of  Commerce  v.  Licking  Valley  Land  &  Mining 
Co.,  15  Ky.  Law  Rep.  211,  22  S.  W.  881;  Com.  v.  New  York,  L.  E.  & 
W.  R.  Co.,  132  Pa.  St.  591,  139  Pa.  St.  457;  Union  Nat.  Bank  of  St. 
Louis  V.  Matthews,  98  U.  S.  621;  Fayette  Land  Co.  v.  Railroad  Co., 
93  Va.  274. 

1*  Rev.  St.  U.  S.  §  3400. 

(1051) 


§   459  REAL  PROPERTY.  [Ch.    27 

which  the  crown  asserted  a  claim  to  lands  or  goods.-^^  There 
is,  in  some  states,  a  statutory  proceeding  for  the  enforcement 
of  such  rights,  but  an  inquest  of  office  as  at  common  law,  or, 
it  seems,  an  action  of  ejectment,  would  be  sufficient  to  try 
the  rights  of  the  state  to  the  land  in  any  such  case. 

To  individual. 


A  tenant  of  a  particular  estate  usually  holds  it  subject  to 
■certain  implied  conditions.  At  common  law,  a  life  tenant 
held  the  land  subject  to  an  implied  condition  that  he  should 
not  make  a  feoffment  thereof  in  fee  simple,  since  this  divest- 
ed the  whole  fee-simple  title,  and  by  so  doing  he  forfeited 
his  estate.  This  ground  of  forfeiture  is  now  obsolete,  since 
a  modern  conveyance  passes  only  such  interest  as  the  gran- 
tor has.^®  A  life  tenant  may,  however,  at  the  present  day, 
forfeit  his  interest  by  the  commission  of  acts  of  waste,  the 
statute  frequently  containing  a  provision  to  this  effect.-^'''  A 
tenant  under  a  lease  may  also  forfeit  his  tenancy  by  his 
disclaimer  of  his  landlord's  title,  and,  in  some  states,  by  the 
use  of  the  premises  for  an  illegal  purpose.^  ^  A  forfeiture 
of  an  estate  for  breach  of  a  condition  is  enforced  by  the 
grantor  of  the  estate  or  his  successor  in  interest  by  means 
of  a  re-entry   or  an  action  of  ejectment. ^^ 

The  question  of  the  forfeiture  of  an  estate  in  land  for 
breach  of  an  express  condition  subsequent  has  been  before 
considered.  ^*^ 

15  3  Bl.  Coram.  358. 

16  Ante,  §  32. 

17 1  Stimson's  Am.  St.  Law,  §  1332. 

IS  Ante,  §  52. 

19  Ante,  §  74. 

20  Ante,  §§  74-77. 

(1052) 


CHAPTER  XXVIII. 

TRANSFER  UNDER  JUDICIAL  PROCESS  OR  DECREE. 

§  460.  Sales  and  transfers  under  execution. 

461.  Sales  in  equity  at  the  instance  of  creditors. 

462.  Sales  of  decedents'  lands. 

463.  Sales  of  lands  of  infants  and  insane  persons. 

464.  Sales  and  transfers  for  purpose  of  partition. 

465.  Equitable  decrees  transferring  title. 

466.  Adjudications  of  bankruptcy. 

An  estate  in  land  may  in  some  cases  be  transferred  by  an 
officer  acting  under  process  from  a  court,  or  by  a  judicial  de- 
cree confirmatory  of  a  transfer  made  by  an  officer  of  the  court, 
and  occasionally  by  a  decree  alone.  Such  transfers  occur  in 
the  case  of  (1)  sales  of  estates  in  land  under  execution  at  the 
instance  of  creditors;  (2)  sales  by  order  of  a  court  of  equity 
at  the  instance  of  creditors;  (3)  sales  of  lands  of  decedents, 
usually  for  the  payment  of  debts  and  legacies;  (4)  sales  of 
lands  of  infants  and  insane  persons;  (5)  sales  and  transfers 
for  purpose  of  partition;  (6)  equitable  decrees,  under  state 
statutes,  transferring  title;  (7)  adjudications  of  bankruptcy, 
by  which  title  passes  to  the  bankrupt's  trustee. 

§  460.    Sales  and  transfers  under  execution. 

The  land  of  a  debtor  was  first  made  subject  to  the  claims 
of  creditors  bj  an  early  statute,^  which  provided  that  one 
who  had  recovered  a  judgment  might  elect  to  have  the  sheriff 
deliver  to  him  the  chattels  of  the  debtor  and  one-half  his  land, 
the  writ  under  which  this  was  done  being  termed  a  "writ  of 
elegit,"  because  it  recited  that  the  creditor  had  elected  (ele- 
git) to  pursue  that  remedy.  Formerly  the  creditor  had 
merely  the  right  to  retain  the  land  taken  under  this  writ 

113  Edw.  I.  c.  18   (St.  Westminster  II.). 

(1053) 


§  460  REAL  PROPERTY.  [Ch.    28 

until  the  rents  and  profits  sufficed  to  pay  the  judgment,  he 
being  known  as  a  tenant  by  elegit;  but  now,  by  statute  in 
England,  the  creditor  may  not  only  take  all  the  debtor's  land 
under  the  writ,  but  he  may  obtain  an  order  for  the  sale  of 
the  land,  the  proceeds  being  distributed  among  all  the  cred- 
itors.^ 

The  writ  of  elegit  has  been  made  use  of  in  but  few  states, 
and  is  at  the  present  day,  it  seems,  obsolete  in  every  state 
but  Delaware.^  In  most  of  the  states  the  same  method  is 
authorized  for  the  realization  of  debts  from  the  land  of  the 
judgment  debtor  as  from  his  chattels, — that  is,  a  seizure  and 
sale  by  the  sheriff,  and  application  of  the  proceeds  to  the 
payment  of  the  judgment.  In  the  IsTew  England  states,  how- 
ever, the  satisfaction  of  a  judgment  out  of  the  debtor's  land 
is  usually  obtained,  not  by  a  sale  of  the  land,  but  by  a  de- 
livery of  the  land,  or  a  part  thereof,  at  a  value  fixed  by  ap- 
praisers, to  the  judgment  creditor,  this  being  known  as  a 
levy  ''by  extent,"  and  the  land  being  said  to  be  "extended." 
The  statutory  provisions  as  to  the  method  of  making  the 
extent  are  full  and  precise,  and  they  must  be  strictly  fol- 
lowed. A  certain  period,  usually  six  months  or  a  year,  is 
allowed  to  the  debtor  in  which  he  may  pay  the  judgment  and 
recover  the  extended  lands,  but,  if  this  is  not  done,  the  cred- 
itor acquires  the  whole  estate  and  interest  of  the  debtor  ab- 
solutely.^ The  satisfaction  of  a  pecuniary  judgment,  wheth- 
er by  a  sale  under  the  writ  or  an  extent,  is  known  as  an  "ex- 
ecution" of  the  judgment. 

As  a  general  rule,  all  legal  interests  in  land  other  than 
tenancies  at  will,  bare  legal  titles,  liens,  and,  in  most  states, 

2  Williams,  Real  Prop.   (18tli  Ed.)   250. 

S3  Freeman,  Executions  (3(i  Ed.)  §  370. 

4  3  Freeman,  Executions,  §  372  et  seq.;  2  Dembitz,  Land  Titles,  § 
173. 
(1054) 


Ch.    28]  JUDICIAL  PROCESS  OR  DECREE.  §   460 

it  would  seem,  contingent  future  interests,  may  be  sold  un- 
der a  writ  of  execution.'^  At  common  law  there  was  no 
method  by  which  the  equitable  interests  could  be  reached  by 
execution,  but,  by  the  Statute  of  Frauds,*^  it  was  enacted 
that  the  execution  might  be  levied  on  lands  of  which  any  other 
person  or  persons  were  seised  or  possessed  of  in  trust  for  the 
execution  debtor.  This  provision  has  been  adopted  or  re- 
enacted  in  a  number  of  the  states,  but  it  has  usually  been  con- 
strued as  applicable  only  in  cases  in  which  a  cestui  que  fru^t 
has,  under  an  express  declaration  of  trust,  the  exclusive  en- 
joyment of  a  beneficial  interest,  the  legal  title  to  which  is 
in  another^  and  neither  it  nor  its  American  counterparts 
have  had  the  effect  of  making  all  equitable  interests  subject 
to  execution.  In  some  states,  however,  more  liberal  statutes 
have  been  adopted,  subjecting  equitable  interests  generally 
to  execution,  while  in  others  the  common-law  rule  which  pre- 
vailed previous  to  the  Statute  of  Frauds  still  controls.''' 
Equitable  interests  which  cannot  be  sold  under  execution  may 
usually  be  reached  by  a  proceeding  in  equity,  known  as  a 
"'creditors'  bill."s 

A  sale  by  a  sheriff  under  a  writ  of  execution  is  by  force 
of  a  statutory  power,^  and  is  effective,  if  legally  made,  and 
followed  by  a  conveyance  to  the  purchaser,  to  divest  the  title 
of  the  judgment  debtor,  and  to  vest  it  in  the  vendee.  In 
order  that  the  sale  may  have  this  effect,  it  must  be  made 
under  a  judgment  rendered  by  a  court  having  jurisdiction 
•of  the  subject-matter  and  the  parties.^*'     If  the  judgment  is 

5  2  Freeman,  Executions,  §  172. 

6  29  Car.  II.  c.  3,  §  10. 

T2  Freeman,  Executions,  §§  187-189;  11  Am.  &  Eng.  Enc.  Law  (2d 
Ed.)   632. 

8  2  Freeman,  Executions,  §  424  et  seq.;  5  Enc.  PI.  &  Pr.  393.  See 
post,  §  461. 

9  See  ante,  §  274. 

10  Freeman,  Executions,  §§  19,  20;  Kleber,  Void  Judicial  Sales, 
J§  262-267,  294. 

(1055) 


§   460  REAL  PROPERTY.  [Ch.    28 

valid,  an  innocent  purchaser  at  the  sale  is  not  usually  affect- 
ed by  irregularities  in  the  proceedings  leading  up  to  the  sale, 
though,  if  the  judgment  creditor  is  the  purchaser,  the  rule 
is  different,  and  he  is  regarded  as  chargeable  with  notice  of 
any  irregularities.^^ 

The  statutes  of  a  number  of  states  give  the  judgment  debtor 
a  certain  period  after  the  execution  sale  within  which  he  may 
redeem  therefrom.  In  the  absence  of  statute,  there  is  no 
right  of  redemption,^  ^ 

The  sheriff  is  required,  by  the  statutes  of  most,  if  not  all, 
the  states,  to  make  a  conveyance  of  the  land  to  the  purchaser 
at  the  sale,  and  this  is  usually  regarded  as  necessary  to  vest 
the  legal  title  in  the  purchaser.  This  conveyance  should  re- 
cite the  recovery  of  the  judgment,  the  issue  of  the  writ,  and 
the  sale  thereunder,  but  any  requirements  in  this  regard  are 
regarded  as  directory  merely.  The  conveyance  must  usually 
be  executed  like  other  conveyances,  and  an  acknowledgment 
is,  in  most  states,  though  not  in  all,  necessary  only  for  the 
purpose  of  record.  If  the  conveyance  is  invalid,  the  pur- 
chaser is  ordinarily  entitled  to  have  a  valid  one  executed  in 
its  place.-^^ 

In  the  case  of  a  sale  under  execution,  the  sale  is  made  by 
the  sheriff  as  a  ministerial  officer,  acting  under  the  writ,  and 
the  court  has  no  control  over  his  actions,  and,  except  in  a 
few  states,  no  confirmation  of  the  sale  by  the  court  is  nec- 
essary in  order  to  validate  the  sale.  An  execution  sale  is 
accordingly  to  be  distinguished  from  the  sales  hereafter  re- 
ferred to  in  this  chapter,  which  are  made  in  conformity  with 
the  order  of  a  court,  and  must  be  confirmed  by  it,  and  which 
are  accordingly  regarded  as  the  act  of  the  court,  though  a 
commissioner  or  other  officer  is  necessarily  employed  by  the 

11  3  Freeman,  Executions,  §  339  et  seq. 

12  3  Freeman,  Executions,  §  314. 

13  3  Freeman,  Executions,  §  324  et  seq. 

(1056) 


Ch.    28]  JUDICIAL  PROCESS  OR  DECREE.  §   453 

court  as  uu  iust rumen t  in  making  the  sale.     An  execution 
sale  is  accordingly  not,  properly  speaking,  a  judicial  sale 


14 


§  461.     Sales  in  equity  at  the  instance  of  creditors. 

The  various  liens  to  wliieh  land  may  be  subject  in  behalf 
of  a  person  other  than  the  ov^^ler  are  enumerated  in  another 
part  of  this  work.^^  These  liens  are  almost  invariably  en- 
forced by  a  sale  of  the  land  under  the  decree  of  a  court  of 
equity  for  the  purpose  of  paying  the  amount  of  the  lieu  from 
the  proceeds.  Likewise,  equity  may  decree  a  sale  in  a  cred- 
itors' suit  brought  to  obtain  a  discovery  of  assets,  or  to  reach 
property  which  is  not  subject  to  execution  because  of  its 
equitable  character,  or  because  transferred  by  a  conveyance 
fraudulent  as  to  creditors.-'^ 

s  462.     Sales  of  decedents'  lands. 

At  common  law,  an  unsecured  debt  could  not  be  enforced, 
as  against  the  real  property  of  the  debtor  after  the  latter's 
decease,  unless  it  was  due  on  a  contract  under  seal,  which 
expressly  bound  the  debtor's  heirs,  and  then  it  could  be  en- 
forced against  the  heir  to  the  extent  of  any  land  in  fee  simple 
descended  to  him.^'^  Under  this  condition  of  the  law  there 
was  no  remedy  available  to  even  the  specialty  creditor  in 
case  the  decedent  had  devised  the  land,  or  the  heir  had  aliened 
it,  and,  accordingly,  it  was  provided  by  statute^  ^  that  a  devisee 
should  be  liable  to  the  same  extent  as  the  heir,  and  that  no 
alienation  by  either  the  heir  or  the  devisee  should  affect  his 
liability  for  the  debt.  These  statutes  imposed  on  the  heir 
and  devisee  a  personal  liability  for  the  land  to  the  extent 

14  Kleber,  Void  Judicial  Sales,  §§  15-20. 

15  Post,  Part  VI. 

16  3  Pomeroy,  Eq.  Jur.  §§  1413-1415.     See  note  8,  ante. 

17  2  Bl.  Comm.  244;  Williams,  Real  Prop.  (18th  Ed.)  262. 

18  3  Wm.  &  M.  c.  14  (A.  D.  1691)  ;  6  &  7  Wm.  III.  c.  14  (A.  D.  1695) ; 
1  Wm.  IV.  c.  47  (A.  D.  1830). 

(1057) 
Real  Prop.— 67 


§  462  REAL  PROPERTY.  [Ch.   28 

of  the  value  of  land  descended  or  devised  to  him,  and  this 
was  restricted  to  debts  under  seal.  Later  it  was  provided^® 
that  all  interests  in  land  should  be  assets  for  the  payment 
of  debts,  whether  by  simple  contract  or  under  seal,  and  that 
the  heir  or  devisee  might  be  sued  in  equity  accordingly  by 
any  creditor  of  the  deceased.  In  this  country  there  is  prob- 
ably in  every  state  a  statute  making  the  realty  of  a  decedent 
liable  for  his  debts  as  against  his  heirs  and  devisees. ^*^ 

Under  the  English  statute  making  the  lands  of  a  decedent 
liable  in  equity  for  his  debts,  the  proceeding  to  subject  the 
land  was  by  a  "'creditors'  bill"  in  equity,  and  this  mode  of 
proceeding  for  the  purpose  is  recognized  in  a  number  of  the 
states.^^  In  most  of  the  states,  however,  the  probate  court 
has  full  jurisdiction  to  order  the  sale  of  land  for  the  payment 
of  debts,  and  likewise,  frequently,  for  other  purposes,  such  as 
the  payment  of  legacies,  or  in  order  to  make  distribution, 
and  the  statutes  usually  provide  that  such  sales  shall  be  or- 
dered on  the  application  of  the  executor  or  administrator.^^ 
The  length  of  time  after  the  decedent's  death  within  which 
a  sale  of  lands  for  this  purpose  can  be  applied  for  by  the 
personal  representatives  or  the  creditors  of  deceased  is  in 
some  states  fixed  by  statute.  ^^  In  the  absence  of  statute,  it 
is  said  that  the  application  must  be  made  within  a  reasonable 
time,-**  and  some  courts  have  adopted  the  statutory  period  in 
which  an  action  to  recover  lands  is  barred,  holding  that  an 

19  3  &  4  Wm.  IV.  c.  104  (A.  D.  1833). 

20  2  Dembitz,  Land  Titles,  §  150;  2  Woerner,  Administration,  §§ 
463,  490;  11  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  838. 

213  Pomeroy,  Eq.  Jur.  §§  1152-1154;  2  Woerner,  Administration,  § 
463;  11  Am.  &  Eng.  Enc.  Law,  1072. 

22  2  Woerner,  Administration,  §§  463,  464. 

23  2  Woerner,  Administration,  §  465. 

24  Liddel  v.  McVickar,  11  N.  J.  Law,  44;  Rosenttial  v.  Renick,  44 
111.  202;  Killough  v.  Hinton,  54  Ark.  65;  State  v.  Probate  Court  of 
Ramsey  County,  40  Minn.  296;  Ferguson  v.  Scott,  49  Miss.  500.  See 
Bindley's  Appeal,  69  Pa.  St.  295. 

(1058) 


Ch.    28]  JUDICIAL  PROCESS  OR  DECREE  g   452 

application  thereafter  is,  in  the  absence  of  special  circum- 
stances, too  late."^ 

A  sale  of  real  estate  to  pay  debts  is  ordinarily  authorized 
only  when  the  personal  estate  is  insufficient  for  the  purpose, 
and  that  such  is  the  case  must  appear  from  the  bill  or  peti- 
tion for  sale  in  order  to  give  the  court  jurisdiction.  In  some 
states  proceedings  for  sale  by  an  executor  or  administrator 
are  regarded  as  adversary  to  the  heirs  or  devisees,  so  that  a 
failure  to  give  the  notice  to  the  latter  as  required  by  statute 
renders  the  sale  void.  In  other  states  they  are  regarded  as 
proceedings  in  rem,  and  so  valid,  though  no  notice  is  given. ^' 
In  a  number  of  states  the  failure  of  the  executor  or  admin- 
istrator to  give  bond  before  making  sale  as  required  by  the 
statute  is  regarded  as  absolutely  invalidating  the  sale,  and 
sometimes  such  effect  is  given  to  a  failure  to  make  the  proper 
oath.27 

The  sale  must  comply  not  only  with  the  requirements  of 
the  statute,  but  also  with  the  terms  of  the  order  for  sale. 
The  sale,  when  made  by  the  executor  or  administrator,  must, 
in  most  states,  be  confirmed  by  the  court  in  order  to  have  any 
effect  whatever  in  passing  title,  since  the  personal  repre- 
sentative, not  expressly  empowered  to  sell  by  the  terms  of  the 
will,  is  regarded  as  the  instrument  of  the  court,  and  the 
sale,  to  be  valid,  must  be  adopted  by  the  court  as  its  own 
act.^^  After  the  sale  is  confirmed,  the  executor  or  admin- 
istrator, still  acting  as  the  instrument  of  the  court,  is  re- 
quired to  make  a  conveyance  of  the  land  to  the  purchaser, 

25  Ricard  v.  Williams,  7  Wheat.  (U.  S.)  59;  Wingerter  v.  Wingert- 
er,  71  Cal.  105;  Rosenthal  v.  Renick,  44  111.  202;  Bozeman  v.  Boze- 
man,  82  Ala.  389;  Sumner  v.  Child,  2  Conn.  607, 

26  2  Woerner,  Administration,  §  466;  Kleber,  Void  Judicial  Sales, 
§§  72,  156. 

27  2  Woerner,  Administration,  §  472;  Kleber,  Void  Judicial  Sales, 
§§  253,  254,  316,  317. 

28  Kleber,  Void  Judicial  Sales,  §§  1-4,  381. 

(1059) 


§   464  REAL  PROPERTY.  [Ch.   28 

and,  until  snch  conveyance  is  executed,  the  purchaser  has  an 
equitable  title  merely.^'' 

§  463.     Sales  of  lands  of  infants  and  insane  persons. 

The  extent  to  which  a  court  of  equity  has  inherent  power 
to  sell  the  land  of  an  infant  for  his  benefit  seems  to  be  in- 
volved in  considerable  doubt;  but  the  question  has  lost  its 
importance,  owing  to  the  passage  of  acts,  in  most,  if  not  all, 
of  the  states,  authorizing  such  sales  either  by  courts  either  of 
equity  or  probate  jurisdiction.  These  sales  are  usually  con- 
ducted by  the  guardian  of  the  infant,  under  the  direction  of 
the  court,  the  proceedings  being  generally  similar  to  those 
in  the  case  of  sales  of  decedents'  lands.  The  application  for 
the  sale  is  usually  required  to  be  made  by  the  guardian,  but 
in  some  states  the  statute  authorizes  it  to  be  made  by  parents 
or  other  persons  interested  in  the  infant's  welfare.^*^ 

The  lands  of  persons  non  compos  mentis  may  likewise  be 
sold  under  the  direction  of  a  court  by  force  of  statutes  to 
that  effect  in  all  or  in  most  of  the  states,  and  occasionally 
such  power  has  been  asserted  by  courts  of  equity  apart  from 
statute.  The  sale  is  usually  made  by  the  committee  or 
guardian  of  the  lunatic  acting  as  an  instrument  of  the  court.^^ 

§  464.     Sales  and  transfers  for  purpose  of  partition. 

Proceedings  by  one  concurrently  interested  in  land  with 
others,  to  obtain  a  partition  or  sale  of  the  land,  have  previ- 
ously been  discussed.^^  In  this  country  the  jurisdiction  of 
proceedings  for  partition  is  usually  determined  by  the  stat- 
ute,  and   there   are   in   many  states   special   provisions   for 

20  2  Woerner,  Administration,  §  480. 

soWoerner,  Guardianship,  §§  68-78;  2  Dembitz,  Land  Titles,  §  151; 
3  Pomeroy,  Eq.  Jur.  §  1309;  Kleber,  Void  Judicial  Sales,  §§  93,  157, 
234-236. 

81  Woerner,  Guardianship,  §  148;  2  Dembitz,  Land  Titles,  §  152, 

32  Ante,  §  175. 

(1060) 


Ch.    28]  JUDICIAL  PROCESS  OR  DECREE.  §   4()5 

the  partition  of  land  belonging  to  a  decedent  in  the  probate 
court,  or  for  a  sale  for  the  purpose  of  partition.^^ 

As  before  stated,  a  partition  proceeding  is  available  only 
in  the  case  of  concurrent  interests  in  land,^^  and  consequent- 
ly cannot  be  employed  in  order  to  apportion  the  land,  or  to 
procure  a  sale,  when  the  persons  interested  in  the  land  own, 
not  concurrent,  but  successive,  interests,  as  when  they  are 
tenants  for  life  and  in  remainder,  or  one  is  tenant  in  fee 
simple,  subject  to  an  executory  limitation  in  favor  of  the 
other.  In  a  few  states  there  is  a  provision  for  a  sale  in 
such  case  under  the  direction  of  a  court  of  equity.^"^ 

§  465.     Equitable  decrees  transferring  title. 

The  court  of  chancery  in  England  always  acted  in  per- 
sonam,, and  not  in  rem,  and  consequently,  in  adjudicating 
rights  "of  the  different  parties  to  a  proceeding  concerning 
land,  it  did  not,  by  its  decree,  undertake  to  transfer  the  title 
from  one  to  the  other  of  such  parties,  but  gave  relief  by  or- 
dering one  party  to  make  a  conveyance,  cancel  an  instru- 
ment, or  do  other  acts  so  as  to  establish  and  perfect  the  rights 
of  the  respective  parties  as  adjudicated.  This  principle  of 
action  on  the  part  of  courts  of  equity  has,  however,  been 
changed  by  statute  in  many  states  of  the  country,  so  that,  in- 
stead of  requiring  the  parties  to  carry  out  the  decree,  the 
court  itself  does  so,  acting  through  a  commissioner  or  other 
oflScer,  and,  under  some  statutes,  the  decree  alone,  without 
any  further  action,  is  sufficient  to  transfer  the  title.  As  re- 
gards land  outside  the  jurisdiction,  however,  the  court  must 
still  act  in  personam.^^ 

While  a  judgment  in  an  action  concerning  land  of  a  strict- 

33  Freeman,  Cotenancy,  §§  550-564. 
3*  Ante,  §  175. 

35  2  Dembitz,  Land  Titles,  §  156. 

36  Pomeroy,  Eq.  Jur.  §§  134,  135,  170,  1317. 

(1061) 


§  466  REAL  PROPERTY.  [Ch.    28 

ly  legal  character,  such  as  ejectment,  or  the  old  real  actions, 
or  the  statutory  "trespass  to  try  title,"  is  usually  decisive 
of  the  rights  of  the  parties  thereto  in  regard  to  the  ownership 
of  the  land,  as  between  themselves,  it  cannot  be  regarded  as 
transferring  the  title  in  any  sense,  but  merely  decides  what 
effect  is  to  be  given  to  previous  transfers. 

§  466.     Adjudications  of  bankruptcy. 

The  present  bankrupt  act^^  provides  that  the  trustee  of 
a  bankrupt,  upon  his  appointment  and  qualification,  shall 
be  vested  by  operation  of  law  with  the  title  of  the  bankrupt, 
as  of  the  date  he  was  adjudged  a  bankrupt,  to  all  property 
which,  prior  to  the  filing  of  the  petition,  he  could  by  any 
means  have  transferred,  or  which  might  have  been  levied 
upon  and  sold  under  judicial  process  against  him.  The 
title  to  the  bankrupt's  land,  therefore,  as  well  as  other  prop- 
erty, passes,  as  it  were,  by  force  of  the  adjudication  of 
bankruptcy,  to  the  trustee  subsequently  appointed.  Previous 
bankrupt  acts,  as  well  as  the  insolvency  statutes  of  the  vari- 
ous states,  have  contained  similar  provisions  transferring  the 
property  of  the  bankrupt  or  insolvent  to  the  trustee,  for  the 
purpose  of  distribution  among  creditors. ^^ 

«T  Act  July  1,  1898  (30  Stat.  565,  §  70a). 
38  16  Am.  &  Eng.  Enc.  Law,  721. 

(1062) 


CHAPTER  XXIX. 

TRANSFER  FOR  NONPAYMENT  OF  TAXES. 

§  467.  Character  of  title  acquired. 

468.  Judgment  for  taxes. 

469.  Forfeiture  to  state. 

470.  Remedial  legislation. 

By  statutory  provision,  land  is  usually  liable  to  be  sold  in 
case  of  nonpayment  of  taxes  thereon.  The  sale  is,  under  some 
statutes,  of  the  land  without  reference  to  the  particular  es- 
tates or  interests  therein,  and,  under  others,  of  the  estate  or 
interest  only  of  the  person  against  whom  the  tax  is  assessed. 

The  proceedings  leading  up  to  the  sale,  including  the  levy 
and  assessment  of  the  taxes,  must,  for  the  most  part,  be  strictly 
followed.  The  title  does  not  pass  till  a  deed  is  made  to  the 
purchaser  by  the  officer  making  the  sale,  and  such  deed  is  not 
made  until  a  certain  period,  named  in  the  statute,  has  elapsed, 
during  which  any  person  interested  in  the  land  may  redeem 
from  the  sale.  In  some  states  the  tax  sale  is  required  to  be 
preceded  by  a  judgment  determining  the  amount  of  taxes  due. 

In  some  states,  land  may  be  forfeited  directly  to  the  state 
for  nonpayment  of  taxes. 

In  many  states  the  statutes  undertake  to  render  a  sale  for 
taxes  valid  in  spite  of  irregularities  in  the  proceedings.  Such 
statutes  are  usually  valid  only  as  applied  to  such  parts  of  the 
proceeding  as  could  have  been  previously  dispensed  with  by 
statute. 

§  467.     Character  of  title  acquired. 

The  payment  of  taxes  on  land  is  in  this  country  usually 
enforced  by  a  summary  sale  of  the  land,  conducted  by  the  tax 
collector    or  some  other  ministerial  officer. 

(1063) 


§   467  REAL  PROPERTY.  ^Q-^,    29 

The  power  to  sell  lands  for  nonpayment  of  taxes  is  a  pure- 
ly statutory  power,  and  it  has  always  been  held  that  the  stat- 
utory requirements  as  to  the  mode  of  making  sale  must  be 
strictly  complied  with,  and  that,  moreover,  since  the  power 
to  sell  exists  only  in  case  there  are  valid  taxes,  which  are 
unpaid,  no  title  will  pass  unless  the  tax  was  levied  and  as- 
sessed in  accordance  with  law.  Tax  sales  have  accordingly 
been  held  to  be  invalid  in  particular  cases  for  want  of  a 
valid  assessment  or  valuation  of  the  property,  duly  verified 
by  the  proper  officers,  and  approved  by  the  legal  reviewing 
authority  or  "board  of  equalization,"  defects  in  the  levy  of 
the  tax,  defects  in  the  warrant  issued  to  the  collector  for  the 
collection  of  the  tax,  failure  to  return  the  list  of  delinquent 
taxes,  noncompliance  with  the  various  requirements  as  to 
the  mode  of  advertising  the  sale,  failure  to  comply  with  the 
statute,  and  also  with  the  advertisement,  as  to  the  conduct  of 
the  sale,  failure  to  sell  all  the  land,  though  a  part  brings 
enough  to  pay  the  taxes.  Furthermore,  the  statutory  re- 
quirements as  to  the  return  of  the  sale  by  the  officer  must  be 
complied  with,  and  he  must  make  a  conveyance  to  the  pur- 
chaser in  strict  conformity  to  the  statute.  The  sale  is  also 
invalid  if  the  tax  was  unconstitutional,  or  not  properly  levied 
by  the  legislature  or  the  municipal  authorities,  or  if  the  land 
was  exempt,  or  the  taxes  had  been  paid  before  the  sale.  In 
view  of  these  many  possible  defects  in  the  proceedings,  as 
well  as  others  which  might  be  mentioned,  it  is  not  strange 
that  titles  based  on  tax  sales  are  generally  regarded  as  of  most 
questionable  soundness,  and,  though  this  condition  of  things 
has  been  to  some  extent  removed  by  legislation,  hereafter 
referred  to,  the  possibilities  of  failure  of  title  through  de- 
fects in  the  proceedings  are  still  such  that  land,  when  sold 
for  taxes,  rarely,  if  ever,  brings  its  actual  value,  and  its 
(1064) 


Ch.  29]         NONPAYMENT  OT   TAXES.  §  457 

purchase  is  ordinarily  for  purposes  of  speculation,  rather 
than  for  actual  occupation.^ 

By  the  statutes  of  many  states,  the  sale  is  of  an  estate  in 
fee  simple  in  the  land,  free  from  any  incumbrances,  and 
without  reference  to  the  estate  or  interest  belonging  to  the 
particular  person  against  whom  the  tax  was  assessed, — that 
is,  the  proceeding  for  sale  is  in  effect  against  the  land,  and 
not  against  any  particular  owner  thereof;  and  if  one  inter- 
ested in  the  land,  though  not  bound  to  pay  the  taxes  as  against 
the  person  in  possession,  desires  to  protect  his  interest,  he 
must  pay  the  taxes,  or  redeem  from  the  tax  sale.  So,  a  re- 
mainderman or  lienor  may,  by  the  failure  of  the  owner  in 
possession  to  pay  the  taxes,  be  divested  of  all  interest  in  the 
land.  In  some  states,  however,  or  under  particular  acts, 
the  taxes  are  not  enforceable  against  the  entire  interest  in 
the  land,  but  against  the  interest  only  of  the  person  against 
whom  the  taxes  are  assessed,  in  which  case  the  interests  of 
other  owners  or  of  lienors  are  not  divested  by  the  sale. 

The  statute  usually,  if  not  always,  names  a  certain  period, 
varying  from  six  months  to  three  years,  within  which  the 
owner  of  the  land  may  redeem  from  the  sale  by  the  payment 
to  the  purchaser  of  the  purchase  money,  interest,  and  costs, 
in  addition  to  which  he  is  ordinarily  required  to  pay  a  pen- 
alty, calculated  in  interest  at  a  high  rate. 

The  purchaser  has,  until  the  execution  of  a  conveyance 
or  "deed"  by  the  officer  making  the  sale,  neither  a  legal  nor 
equitable  title  to  the  land,  but  rather  a  lien  thereon  for  the 
amount  of  the  purchase  money,  interest,  costs,  and  penalty. 
He  is  usually  entitled  to  the  deed  upon  the  expiration  of  the 

1  An  admirable  sketch  of  the  uncertainties  involved  In  a  tax  title 
is  contained  in  2  Dembitz,  Land  Titles,  p.  1323  et  seq.  The  standard 
works  upon  the  very  extensive  subject  of  tax  sales  are  those  by 
Robert  S.  Blackwell,  the  fifth  edition  of  which  is  well  edited  by  Frank 
Parsons,  Esq.,  and  by  Henry  C.  Black,  Esq. 

(1065) 


§   469  REAL  PROPERTY.  [Ch.    29 

time  for  redemption,  and  not  before,  and  the  statutes  fre- 
quently impose  certain  formalities  as  conditions  precedent 
to  his  obtaining  the  deed.  The  requirements  of  the  statute 
as  to  the  form  of  the  deed,  which  are  frequently  most  de- 
tailed and  precise  in  character,  and  often  include  full  recitals 
of  the  antecedent  proceedings,  must  be  strictly  followed, 
and  the  deed  must  be  executed  in  strict  compliance  with  the 
statute  in  order  to  vest  the  title  in  the  purchaser. 

§  468.     Judgment  for  taxes. 

In  some  states  the  legislature  has  provided  that  the  sale 
of  land  for  taxes  shall  be  preceded  by  the  rendition  of  a 
judgment  determining  the  amount  of  the  taxes  due.  The 
proceeding  to  obtain  such  a  judgiuent  is  in  the  nature  of  a 
proceeding  in  rem  against  the  land,  rather  than  in  personam 
against  the  owner  of  the  land,  and,  consequently,  personal 
service  of  notice  of  the  proceeding  is  not  regarded  as  a  pre- 
requisite to  the  judgment,  constructive  service  by  publication 
being  authorized.  Any  objections  to  the  validity  of  the  tax 
or  to  the  assessment  must  be  made  by  way  of  defense  to  the 
application  for  judgment,  and  the  judgment  is,  until  re- 
versed, regarded  as  conclusive  of  the  right  to  make  the  sale, 
according  to  numerous  decisions,  even  though  the  taxes  were 
actually  paid. 

§  469.     Forfeiture  to  state. 

The  statute  occasionally  provides  that,  upon  nonpayment 
of  taxes  due  the  state,  the  land,  instead  of  being  sold,  shall 
be  forfeited  to  the  state.  Whether  such  a  forfeiture  is  valid 
if  not  preceded  by  a  judicial  finding  that  a  default  in  the 
payment  of  taxes  exists  is  a  question  open  to  very  consider- 
able doubt. ^ 

2  Cooley,  Taxation,  461  et  seq. 
(1066) 


Ch.  29]         NONPAYMENT  OF   TAXES.  §  470 

§  470.     Remedial  legislation. 

The  legislatures  of  the  various  states  have,  particularly  in 
more  recent  years,  frequently  passed  curative  statutes  for  the 
purpose  of  validating  tax  sales  previously  made,  as  well  as 
those  thereafter  to  be  made.  These  acts  are  regarded  as 
valid  in  so  far  as  they  undertake  to  validate  the  proceedings 
in  respect  to  a  particular  step  therein  with  which  the  legis- 
lature could  have  dispensed  in  the  first  place,  but  no  further. 
The  same  end  of  curing  defective  proceedings  has  frequently 
been  attained  by  the  passage  of  acts  providing  that  the  deed 
to  the  purchaser  shall  be  prima  facie  evidence  of  the  regu- 
larity of  the  proceedings,  and  it  has  sometimes  been  made 
even  conclusive  evidence  in  this  respect,  this  latter  legisla- 
tion being  valid,  however,  as  are  other  curative  acts,  in  re- 
gard only  to  matters  which  could  have  been  previously  dis- 
pensed with. 

Another  mode  in  which  the  legislatures  have  undertaken 
to  add  to  the  security  of  the  purchaser  at  a  tax  sale  is  by 
"short"  statutes  of  limitation  in  connection  with  tax  titles, 
requiring  the  original  owner  to  proceed  to  recover  the  land 
from  the  purchaser  within  a  certain  number  of  years,  less 
than  that  within  which  actions  for  land  must  ordinarily  be 
brought.  These  statutes  have  usually,  like  the  other  statutes 
having  the  same  pu-rpose  in  view,  been  regarded  as  applicable 
only  when  the  jurisdictional  requirements  of  a  valid  sale  were 
present,  and  as  insufficient  to  validate  a  sale  which  is  void 
for  want  of  jurisdiction  on  the  part  of  the  officials  to  make 
the  sale. 

(1067) 


CHAPTER  XXX. 

APPROPRIATION  UNDER  EMINENT  DOMAIN. 

§  471.  The  power  to  appropriate. 

472.  Rights  subject  to  appropriation. 

473.  Mode  of  appropriation. 

474.  Time  of  passing  of  title. 

Under  its  power  of  eminent  domain  the  state  may  appro- 
priate private  property,  including  land,  or  particular  interests 
therein,  for  public  use,  upon  payment  of  just  compensation. 
The  power  may  be  exercised  by  the  state  or  any  corporation  or 
person  to  whom  it  delegates  the  power. 

The  title  to  the  land  appropriated  does  not  usually  pass 
till  payment  of  the  compensation  therefor,  but  the  statute 
may  provide  that  it  shall  do  so,  in  the  absence  of  any  explicit 
constitutional  prohibition. 

§  471.     The  power  to  appropriate. 

The  power  of  the  state  to  appropriate  property  for  public 
use,  upon  payment  of  just  compensation,  may  be  exercised 
directly  by  the  state  itself,  or  the  state  may,  in  the  exercise 
of  the  power,  select  particular  agencies,  either  natural  per- 
sons or  corporations,  on  w^hom  it  confers  the  right  to  take 
private  property  for  public  use.  Thus,  the  legislature  may, 
and  ordinarily  does,  authorize  municipal  corporations  to  ap- 
propriate or  "condemn"  land  for  street  and  other  municipal 
purposes,  and  so  it  may  authorize  a  railroad  or  irrigation 
company,  or  other  private  corporation,  to  appropriate  prop- 
erty for  its  use,  upon  payment  of  just  compensation,  pro- 
vided only  the  use  for  which  it  is  appropriated  is  of  a  public 
character.  This  grant  by  the  legislature  of  the  right  to  ex- 
(1068) 


Ch.    30]  EMINENT   DOMAIN.  g   472 

ercise  the  power  is  frequently  by  means  of  a  general  statute 
operating  in  favor  of  the  corporations  of  a  particular  class 
which  may  desire  to  exercise  the  right.^ 

The  result  of  the  exercise  of  the  power  in  connection  with 
land  is  to  transfer  to  the  state,  or  to  the  corporate  body  to 
which  the  power  is  delegated  by  the  state,  all  or  some  of  the 
rights  in  particular  land  previously  vested  in  a  particular 
individual,  or  in  a  number  of  individuals. 

§  472.     Rights  subject  to  appropriation. 

There  may  be  an  appropriation  of  the  rights  of  ownership 
in  a  particular  piece  of  land,  the  entire  interest  of  the  former 
owner  thus  passing  to  the  appropriator,  or  a  right  merely  to 
use  the  land  for  the  particular  public  purpose  may  be  ac- 
quired. Whether  there  is  an  appropriation  of  the  owner- 
ship of  the  land  is  usually  a  question  of  the  construction  of 
the  statute  under  which  the  land  is  condemned,  in  connection 
with  any  constitutional  restrictions  upon  the  power.  In  the 
case  of  a  taking  by  a  private  corporation  there  is  usually  a 
presumption  that  the  ownership,  or,  as  it  is  ordinarily  ex- 
pressed, the  "fee,"  does  not  pass,  and,  unless  the  statute  ex- 
plicitly authorizes  the  taking  of  a  fee,  or  this  is  necessary 
for  the  particular  use,  it  is  usually  considered  that  a  right 
of  user  only  is  taken  by  even  a  public  corporation.^  Ac- 
cordingly a  railroad  company  ordinarily  acquires  by  con- 
demnation merely  an  easement  in  the  land,  and,  in  the  case 
of  land  taken  for  highway  purposes,  the  public  frequently 
acquires  merely  the  right  to  use  the  land  for  such  purposes. 

The  rights  of  the  owner  of  land  may  be  infringed,  not  by 
the  actual  taking  of  the  land  for  a  particular  public  pur- 
pose, but  by  the  fact  that  the  utilization  of  neighboring  land 

1  Randolph,  Eminent  Domain,  §§   102-106;    1  Lewis,  Eminent  Do- 
main, §  243. 

2  Randolph,  Eminent  Domain,   §  205;    1  Lewis,   Eminent  Domain, 
§  278. 

(1069) 


§   472  REAL  PROPERTY.  [Ch.   30 

for  such  a  purpose  results  in  the  forcing  of  water  upon  the 
former  land,  or  the  casting  thereon  of  stone,  earth,  or  sew- 
erage, thus  interfering  with  the  owner's  rights  of  user  in 
the  land,  and  to  that  extent  appropriating  his  rights  in  the 
land.^  The  taking  for  public  use  may  also  involve,  not  a 
physical  invasion  of  the  land  itself,  but  merely  the  divesting 
of  some  of  the  natural  rights  incident  to  the  ownership  of 
land.  So,  one  may  be  divested  of  rights  as  to  the  flow  of  a 
natural  watercourse,  of  access  to  water,  or  of  rights  with 
respect  to  percolating  and  surface  water.  Likewise,  one 
may  be  deprived  of  his  natural  right  to  freedom  from  dust, 
smoke,  noise,  and  the  like.  The  cases  are  in  very  consider- 
able conflict  as  to  the  right  to  compensation  for  consequential 
injuries  to  land,  arising  from  the  invasion  of  the  natural 
rights  of  freedom  from  dust,  noise,  or  noxious  odors.^ 

One  may,  moreover,  be  deprived,  by  the  physical  appro- 
priation of  another  person's  land,  of  an  easement  which  he 
enjoys  in  such  land.^ 

The  fact  that  one's  land  abuts  on  a  highway  or  street  is 
quite  generally  considered  to  give  him  certain  rights  of  light, 
air,  and  access,  interference  with  which  entitles  him  to  com- 
pensation as  for  the  taking  of  property.  Rights  of  this  char- 
acter, as  the  subject  of  compensation,  have  been  before  con- 
sidered, as  has  the  question  of  the  extent  to  which  the  pre- 
vious appropriation  or  dedication  of  land  for  a  highway  au- 
thorizes its  use,  without  further  compensation,  for  particu- 
lar purposes,  on  the  ground  that  such  purposes  are  of  a 
"highway"  character.^ 

3  Pumpelly  v.  Green  Bay  &  Mississippi  Canal  Co.,  13  Wall.  (U.  S.) 
166;  Eaton  v.  Boston.  C.  &  M.  R.  Co.,  51  N.  H.  504,  Finch's  Cas.  1. 

4  Randolph,  Eminent  Domain,   §  152;    1  Lewis,  Eminent  Domain, 
§  151a. 

5  Arnold  v.  Hudson  River  R.  Co.,  55  N.  Y.  661;  Ladd  v.  City  of 
Boston,  151  Mass.  585;  1  Lewis,  Eminent  Domain,  §  144. 

6  Ante,  §  365. 

(1070) 


Cil    30]  EMINENT  DOMAIN.  §  473 

§  473.     Mode  of  appropriation. 

The  statutes  usually  contain  explicit  provisions  as  to  the 
constitution  of  the  tribunals  which  are  to  decide  the  amount 
of  compensation  to  be  paid  for  the  property  taken.  Such  a 
tribunal  may,  in  the  absence  of  any  statutory  requirement 
to  the  contrary,  be  composed  of  a  jury  of  less  than  twelve 
men,  or  of  a  board  of  commissioners. 

The  petition  for  the  condemnation  should  show  the  pub- 
lic character  of  the  use,  and  the  necessity  of  taking  the  par- 
ticular land,  and  this  latter  must  be  accurately  described. 
Notice  to  the  owner  is  necessary  before  the  compensation  is 
assessed,  but  constructive  notice  by  publication  is  usually  re- 
garded as  sufficient.  The  action  of  the  tribunal  in  fixing  the 
amount  of  the  compensation  is  frequently  subject  to  re- 
view by  appeal  or  certiorari,  but  is  not  so  in  the  absence  of 
a  statutory  provision.  In  the  case  of  an  attempted  taking 
•of  private  property  under  color  of  the  right  of  eminent  do- 
main, which  is,  however,  unauthorized,  on  account  of  the 
private  nature  of  the  use,  the  lack  of  necessity  for  the  ap- 
propriation, or  lack  of  legislative  authority,  the  owner  may 
usually  obtain  an  injunction  against  the  wrongful  entry  on 
the  land,  or  may  sue  in  ejectment  or  trespass,  and  sometimes 
other  remedies  are  available. 

The  constitutions  of  some  states  provide  that  compensation 
shall  be  made  before  the  land  is  taken,  but  in  others,  where 
there  is  no  such  provision,  the  legislature  sometimes  au- 
thorizes a  taking  of  property,  and  leaves  the  onus  upon  the 
landowner  of  instituting  proceedings  to  ascertain  the  com- 
pensation to  be  paid,  and  to  enforce  its  payment.  Such 
legislation  has  usually  been  supported  in  the  case  of  a  taking 
by  the  state  or  a  municipal  corporation,  but  in  a  number 
-of  states  it  has  been  held  that,  in  the  case  of  the  actual  occu- 
pation of  land  by  a  private  corporation,  the  payment  of  the 
•compensation  must  be  in  some  way  secured  to  the  owner  of 

(1071) 


§   474  REAL  PROPERTY.  [Ch.  30 

the  land  before  he  can  thus  be  deprived  of  his  property. 
When  the  taking  of  property  does  not  involve  the  direct  oc- 
cupation of  the  land  of  the  person  claiming  compensation, 
but  merely  consequential  injuries  thereto,  the  recovery  of 
compensation  is  naturally  subsequent  to  the  acts  which  con- 
stitute the  taking,  since  they  were  not  previously  ascertain- 
able/ 

§  474.     Time  of  passing  of  title. 

The  statute  is  usually  construed  as  divesting  the  title  of 
the  owner  of  the  land  only  upon  payment  of  the  compensation 
awarded,^  and  this  is  necessarily  the  case  when  the  consti- 
tution provides  that  the  compensation  shall  be  paid  previous 
to  the  taking.  In  the  absence  of  such  a  constitutional  pro- 
vision, the  statute  may  authorize  the  taking  of  the  land  be- 
fore payment.  Such  a  statutory  provision  is  sometimes 
construed  as  not  transferring  the  title  before  payment  of 
the  award,  but  as  merely  giving  a  right  of  entry  and  occu- 
pation of  the  land  as  a  preliminary  to  acquiring  title  by  con- 
demnation.^ But,  in  the  absence  of  such  a  constitutional 
provision  as  that  referred  to,  the  fact  that  the  constitution 
requires  a  just  or  reasonable  compensation  to  be  paid  does 
not  prohibit  a  statute  authorizing  the  passing  of  the  title  be- 
fore payment  of  the  compensation,  provided  there  is  adequate 

7  Randolph,  Eminent  Domain,  §§  231,  291,  362;  1  Lewis,  Eminent 
Domain,  §§  456-459,  607. 

8  New  Orleans  &  S.  R.  Co.  v.  Jones,  68  Ala.  48 ;  City  of  Chicago  v. 
Barbian,  80  111.  482;  Stacey  v.  Vermont  Cent.  R.  Co.,  27  Vt.  39;  Man- 
chester &  K.  R.  Co.  V.  Keene,  62  N.  H.  81;  Fox  v.  Western  Pac.  R. 
Co.,  31  Cal.  538;  Perkins  v.  Maine  Cent.  R.  Co.,  72  Me.  95;  Williams 
V.  New  Orleans,  M.  &  T.  R.  Co.,  60  Miss.  689;  Provolt  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  57  Mo.  256;  Jones  v.  Miller  (Va.)  23  S.  B.  35;  Lever- 
ing V.  Philadelphia,  G.  &  N.  R.  Co.,  8  Watts  &  S.  (Pa.)  459. 

9  Fox  V.  Western  Pac.  R.  Co.,  31  Cal.  538 ;  Cushman  v.  Smith,  34 
Me.  247;  Kennedy  v.  Indianapolis,  103  U.  S.  599. 

(1072) 


Ch.  30]  EMINENT    DOMAIN.  §   474 

provision  for  the  ascertainment  and  collection  of  the  com- 
pensation.-^'^ 

By  a  number  of  decisions  it  is  held  that  the  owner  of  the 
land  has  a  lien  for  the  amount  of  the  compensation,  either 
by  force  of  the  specific  statutory  provisions,  or  by  analogy 
to  a  vendor's  lien  for  the  purchase  price.' ^  Such  decisions 
seem  necessarily  to  imply  that  the  ownership  of  the  land 
has  passed  by  the  condemnation  proceeding,  since  one  cannot 
usually  have  a  lien  on  his  own  land. 

10  Sweet  V.  Rechel,  159  U.  S.  380;  Ballon  v.  Ballou,  78  N.  Y.  325; 
City  of  Pittsburgh  v.  Scott,  1  Pa.  St.  309. 

11  Organ  v.  Memphis  &  Little  Rock  R.  Co.,  51  Ark.  235;  Kittell  v. 
Missisquoi  R.  Co.,  56  Vt.  96;  Bridgman  v.  St.  Johnsbury  &  L.  C.  R. 
Co.,  58  Vt.  198;  Drury  v.  Midland  R.  Co.,  127  Mass.  571;  Lycoming 
Gas  &  Water  Co.  v.  Moyer,  99  Pa.  St.  615;  In  re  New  York,  W.  S.  & 
B.  Ry.  Co.,  94  N.  Y.  287;  Frelinghuysen  v.  Central  R.  Co.  of  New 
Jersey,  28  N.  J.  Eq.  388;  Gillison  v.  Savannah  &  C.  R.  Co.,  7  Rich. 
(S.  C.)  173;  Provolt  v.  Chicago,  R.  I.  &  P.  R.  Co.,  69  Mo.  633;  New 
Bedford  R.  Co.  v.  Old  Colony  R.  Co.,  120  Mass.  397;  2  Lewis,  Eminent 
Domain,  §  620. 

(1073) 
Real  Prop.— 68     • 


CHAPTER  XXXI. 

NOTICE,  PRIORITY,  AND  RECORDING. 

§  475.  The  equitable  doctrines. 

476.  The  recording  acts. 

477.  Sufficiency  of  record. 

478.  Persons  affected  with  notice  by  record. 

479.  Notice  as  substitute  for  recording. 

480.  Notice  from  possession. 

481.  Notice  from  statements  in  instruments  of  title. 

482.  Purchasers  under  particular  classes  of  conveyances.  '   f 

483.  Purchasers  for  value.  i 

484.  Purchasers  with  notice  from  purchasers  without  notice. 

485.  Purchasers  without  notice  from  purchasers  with  notice. 

486.  Purchasers  at  execution  sales. 

487.  Lis  pendens. 

Any  conflict  arising  in  connection  with  particular  land,  as 
between  persons  claiming  under  different  conveyances  by  the 
same  person,  is  ordinarily  determined  by  the  doctrine  of  notice, 
one  acquiring  title  for  value  being  entitled  to  assert  his  claim 
as  against  a  claim  which  had  previously  accrued  in  favor  of  an- 
other, provided  he  did  not  have  notice  of  such  prior  claim,  and 
not  otherwise. 

A  subsequent  purchaser  may  have  actual  notice  of  a  prior  in- 
strument vesting  rights  in  another,  or  he  may  have  construct- 
ive notice  thereof,  by  reason  of  the  record  of  such  instrument 
nnder  the  recording  acts,  from  the  possession  of  the  land  by 
one  claiming  under  such  instrument,  or  from  any  other  facts 
reasonably  calculated  to  put  him  on  inquiry  as  to  such  adverse 
claim. 

That  the  record  of  an  instrument  may  affect  a  subsequent 
purchaser  with  notice,  the  record  must  be  in  conformity  to  law, 
and  the  instrument  must  usually  have  been  acknowledged. 

Notice  to  a  subsequent  purchaser  sufficient  to  postpone  his 
(1074) 


Ch.  31]  PRIORITY   AND   RECORDING.  j^   475 

claim  to  one  under  a  prior  instrument  may  arise  from  the  fact 
that  his  agent  has  notice  of  such  instrument. 

One  havings  constructive  notice  of  an  instrument  by  reason 
of  its  record  is  charged  with  notice  of  whatever  is  contained 
in  such  instrument,  or  is  referred  to  therein. 

In  some  states,  but  not  in  all,  a  subsequent  purchaser  cannot 
claim  as  against  a  prior  instrument,  although  this  be  unre- 
corded, unless  his  own  conveyance  be  recorded. 

A  purchaser  under  a  quitclaim  deed  cannot,  in  some  states, 
claim  priority  as  against  a  prior  conveyance,  although  the  lat- 
ter be  unrecorded,  and  he  has  no  notice  thereof. 

One  who  acquires  rights  in  land  otherwise  than  for  a  valu- 
able consideration  takes  subject  to  all  prior  instruments  affect- 
ing the  land. 

If  one  acquires  land  free  from  an  adverse  claim  because  with- 
out notice  thereof,  one  to  whom  he  sells  the  land  takes  it  in 
the  same  condition,  unless  his  vendor  originally  acquired  the 
land  from  him. 

By  the  doctrine  of  "lis  pendens,"  one  acquiring  land,  pending 
litigation  in  regard  thereto,  from  one  of  the  parties  to  the  liti- 
gation, usually  takes  it  subject  to  the  results  of  the  litigation. 

§  475.     The  equitable  doctrines. 

Apart  from  the  recording  acts,  hereafter  to  be  discussed, 
and  certain  statutes  in  reference  to  fraudulent  conveyances,^ 
transfers  of  the  legal  title  to  land  rank,  between  themselves, 
according  to  priority  in  time, — that  is,  if  an  owner  of  land 
transfers  a  legal  estate  to  one  person,  a  subsequent  attempt- 
ed transfer  of  a  legal  estate  of  the  same  or  a  less  quantum 
to  another  person  necessarily  conveys  nothing,  because  the 
transferrer  has  nothing  to  convey.  Moreover,  apart  from 
statute,  one  who  obtains  the  conveyance  of  the  legal  title  for 
value,  and  without  notice  of  a  prior  equity  of  any  sort,  takes 

1  Post,  §§  461,  462. 

(1075) 


§   475  REAL  PROPERTY.  [Ch.  31 

free  from  that  equity,  whether  it  be  a  trust,  an  equitable 
lien,  or  any  other  right  enforceable  in  equity  alone. ^ 

As  between  interests  or  claims  of  a  purely  equitable  char- 
acter,— that  is,  enforceable  in  equity  alone, — while,  as  a  gen- 
eral rule,  they  will  be  ranked  according  to  the  time  of  accrual, 
this  is  by  no  means  always  so,  equity  frequently  postponing 
an  earlier  to  a  later  claim,  the  rule  being  that  only  as  be- 
tween equal  equitable  claims,  or  "equities,"  as  they  are  usu- 
ally called,  will  priority  of  time  give  priority  of  right.  Con- 
sequently, the  equity  prior  in  time  may  be  deferred  from  con- 
siderations of  the  respective  natures  of  the  two  equities,  as 
when  a  mere  gift  is  postponed  to  a  subsequent  trust  or  lien 
created  for  a  valuable  consideration.  Likewise,  the  equity 
prior  in  time  may  be  postponed  because  the  person  entitled 
thereto  was  guilty  of  fraud  or  negligence.  Finally,  a  court 
of  equity  may,  under  certain  peculiar  circumstances,  refuse 
to  enforce  a  claim,  though  prior  in  time,  as  against  the  hold- 
er of  a  title  or  claim  subsequently  obtained,  on  the  ground 
that  the  holder  of  the  latter  is  a  "purchaser  for  value  with- 
out notice," — that  is,  that  he  obtained  his  right  not  only 
by  paying  value,  but  without  notice  of  the  prior  equity.^ 

While  the  absence  of  notice  may  have  the  effect  of  pre- 
venting the  enforcement  of  an  equity  as  against  the  holder 
of  the  subsequent  equity,  courts  of  equity  have  also  adopted 
and  unfailingly  enforced  tlie  rule  that,  if  the  holder  of  the 
subsequent  equity,  even  though  he  be  a  purchaser  for  value, 

2  2  Pomeroy,  Eq.  Jiir.  §  767;  Fahn  v.  Bleckley,  55  Ga.  81;  Warnock 
T.  Harlow,  96  Cal.  298,  31  Am.  St.  Rep.  209;  Gray  v.  Coan,  40  Iowa, 
327;  Hoult  v.  Donahue,  21  W.  Va.  294;  Carlisle  v.  Jumper,  81  Ky. 
282. 

3  Snell,  Principles  of  Eq.  (4th  Ed.)  23-42;  2  Pomeroy,  Eq.  Jur.  §§ 
591-785.  This  latter  work,  containing,  as  it  does,  a  most  admirable 
discussion  of  the  equitable  doctrines  above  referred  to,  and  also  of 
their  modification  by  the  recording  acts,  has  furnished  much  of  the 
material  for  this  chapter. 

(1076) 


Ch.  31]  PRIORITY   AND  RECORDING.  §   476 

does,  at  the  time  of  obtaining  such  equity,  have  notice  of  the 
prior  equity,  he  takes  subject  thereto. 

The  equitable  rule  just  referred  to,  by  which  one  who  takes 
an  interest  with  notice  of  a  prior  equity  takes  subject  there- 
to, is  not  confined  to  the  case  of  a  purchaser  of  an  equity,  but 
is  also  applied  as  against  a  purchaser  of  the  legal  title  with 
notice  of  a  prior  equity, — that  is,  it  is  a  general  rule  in 
equity  that  one  who  takes  an  interest  with  notice  of  an  out- 
standing adverse  interest  takes  subject  thereto. 

§  476.     The  recording  acts. 

The  rule  above  referred  to,  that,  as  between  conveyances 
of  the  legal  title,  the  first  in  time  must  prevail,  has  been  en- 
tirely changed  by  the  recording  acts,  which  exist  in  every 
state,  and  which  provide  in  effect  that  a  conveyance  or  mort- 
gage of  land,  and  frequently  any  other  instrument  affecting 
land,  shall  not,  as  against  a  subsequent  conveyance  or  mort- 
gage in  favor  of  a  purchaser  for  value,  be  valid,  unless  it  is 
filed  for  record  in  a  public  record  office.  Usually  this  re- 
quirement of  record  is  for  the  protection  of  subsequent  pur- 
chasers only,  and  the  failure  to  record  the  instrument  in  no 
way  affects  the  passing  of  the  title  as  between  the  parties."* 

The  construction  placed  by  the  courts  upon  the  recording 
acts  has  been  in  effect  to  make  the  record  of  an  instrument 
in  accordance  with  the  act  equivalent  to  notice,  to  every 
subsequent  purchaser^  of  the  existence  and  contents  of  the 
instrument,  irrespective  of  whether  he  actually  examines  the 

4  See  1  Stimson's  Am.  St.  Law,  §  1611(B)  ;  Warnock  v.  Harlow,  96 
Cal.  298,  31  Am.  St.  Rep.  209;  Shirk  v.  Thomas,  121  Ind.  147,  16  Am. 
St.  Rep.  381;  Wood  v.  Chapin,  13  N.  Y.  509,  67  Am.  Dec.  62;  McLaugh- 
lin V.  Ihmsen,  85  Pa.  St.  364. 

In  Maryland,  the  instrument  must  be  recorded  to  pass  title. 
Nickel  V.  Brown,  75  Md.  172.  And  so  record  may  be  required  in 
order  to  give  validity  to  a  particular  conveyance,  as  one  by  a  mar- 
ried woman.     Rorer  s  Heirs  v.  Roanoke  Nat.  Bank,  83  Va.  589. 

(1077) 


g   476  REAL  PROPERTY.  [Ch.   31 

records  so  as  to  obtain  such  information  f  the  recording  acts 
being  thus  in  effect  made  to  involve  an  application  and  ex- 
tension of  the  jore-existing  doctrine  that  a  purchaser  with 
notice  of  a  prior  right  takes  subject  to  such  right. 

Though  by  some  of  the  earlier  decisions  the  record  of  an 
equitable  title  was  not  regarded  as  sufficient  to  affect  a  sub- 
sequent purchaser  witli  notice  thereof,  the  rule  is  now  gen- 
erally settled  otherwise,  sometimes  by  express  statutory  pro- 
vision, and  consequently  a  purchaser  of  a  title,  legal  or  equi- 
table, takes  subject  to  an  instrument,  creating  or  transfer- 
ring an  equity,  which  has  been  recorded.^ 

In  many  states  the  statute  requires  that  a  power  of  at- 
torney shall  be  recorded  in  order  to  render  the  record  of  a 
conveyance  made  under  such  power  effective  as  notice  to  sub- 
sequent purchasers."  In  the  absence  of  such  statutory  re- 
quirement there  is  no  necessity,  it  seems,  of  recording  the 
power,  since  the  conveyance  puts  the  purchaser  on  inquiry 
as  to  the  authority  of  the  agent  or  attorney.^  The  revocation 
of  a  j)ower  of  attorney  is  also  frequently  required  to  be  re- 
corded in  order  to  be  valid,  if  the  power  itself  has  been  re- 
corded.** 

The  practical  effect  of  the  recording  acts  is  that  an  in- 

5  2  Pomeroy,  Eq.  Jur.  §  649;  2  White  &  T.  Lead.  Cas.  Eq.  203; 
Webb,  Record  of  Title,  §  4. 

6  Russell's  Appeal,  15  Pa.  St.  319,  6  Gray's  Cas.  387;  General  Ins. 
Co.  of  Maryland  v.  United  States  Ins.  Co.  of  Baltimore,  10  Md.  517, 
69  Am.  Dec.  174;  Edwards  v.  McKernan,  55  Mich.  520;  Wilder  v. 
Brooks,  10  Minn.  50  (Gil.  32),  88  Am.  Dec.  49;  Herrington  v.  Wil- 
liams, 31  Tex.  448;  Hunt  v.  Johnson,  19  N.  Y.  279;  Tarbell  v.  West, 
86  N.  Y.  280;  O'Neal  v.  Seixas,  85  Ala.  80;  Fish  v.  Benson,  71  Cal.  428; 
Bailey  v.  Myrick,  50  Me.  171;  Smith  v.  Neilson,  13  Lea  (Tenn.)  461; 
Webb,  Record  of  Title,  §  36. 

T  1  Stimson's  Am.  St.  Law,  §  1624(10),  1670. 

8  See  Anderson  v.  Dugas,  29  Ga.  440;  Valentine  v.  Piper,  22  Pick. 
(Mass.)  85,  33  Am.  Dec.  715;  Wilson  v.  Troup,  2  Cow.  (N.  Y.)  195, 
14  Am.  Dec.  458. 

9  1  Stimson's  Am.  St.  Law,  §  1673. 

(1078) 


Ch.  31]  PRIORITY   AND  RECORDING.  j<   470 

tending  purchaser  of  land  may,  by  reference  to  the  record, 
determine  whether  his  vendor  has  previously  disposed  of 
any  interest  in  the  land,  and  also  ascertain  both  the  person 
from  whom  his  vendor  obtained  the  land,  and  whether  such 
person  disposed  of  any  interest  to  a  person  other  than  such 
vendor,  and  so,  in  the  case  of  each  of  the  successive  owners 
of  the  land,  determine  whether,  during  the  period  of  his 
ownership,  he  created  any  interest  not  vested  in  the  present 
vendor.  The  names  of  such  successive  owners  of  the  land 
constitute  what  is  usually  kno^\m  as  "the  chain  of  title." 

Since  the  recording  acts  have  been  construed  as  charging 
a  purchaser  with  notice  of  a  recorded  instrument,  on  the 
theory  that,  if  he  exercised  proper  diligence,  he  would,  by 
searching  the  records,  discover  the  existence  and  terms  of 
such  instrument,  he  has,  on  the  same  theory,  been  held  not  to 
be  charged  wath  notice  when  his  failure  to  discover  the  re- 
corded instrument  was  not  owing  to  lack  of  diligence.  Ac- 
cordingly, intending  purchasers  have  been  regarded  as 
charged  with  notice,  not  of  all  instruments  which  appear  on 
the  record  as  affecting  the  land,  but  of  those  only  which  ap- 
pear there  as  having  been  made  by  a  person  in  the  chain  of 
title, — that  is,  if  there  be  another  and  independent  chain 
of  title  upon  the  records,  a  purchaser  is  not  affected  with 
notice  of  the  instruments  contained  therein,  since  there  is 
no  clue  calling  his  attention  to  such  instruments.  For  in- 
stance, A.  purchasing  from  B.  is  not  affected  with  notice 
of  a  conveyance,  previously  recorded,  from  C.  to  D.,  unless 
B.'s  title  appears  on  the  record  to  be  derived  through  C.^^ 

10  2  Pomeroy,  Eq.  Jur.  §§  658,  761;  Lumpkin  v.  Adams,  74  Tex.  97; 
Blake  v.  Graham,  6  Ohio  St.  580,  67  Am.  Dec.  360;  Hetherington  v. 
Clark,  30  Pa.  St.  393;  City  of  Chicago  v.  Witt,  75  111.  211;  Page  v. 
Waring,  76  N.  Y.  463;  Roberts  v.  Bourne,  23  Me.  165,  39  Am.  Dec. 
614. 

So,  if  a  conveyance  from  A.  is  not  recorded,  the  fact  that  a  con- 
veyance from  the  grantee  therein  to  another  is  recorded  will  not 

(1079) 


§   476  REAL  PROPERTY.  [Ch-  31 

A  purchaser  is  not,  as  a  general  rule,  charged  with  notice 
of  a  conveyance  which  is  of  record,  even  though  made  by  a 
person  in  the  chain  of  title,  unless  it  was  made  by  such  per- 
son after  the  time  at  which  the  records  show  him  to  have 
obtained  the  title, — that  is,  the  purchaser  is  not  bound  to 
search  the  records  to  determine  whether  any  particular  per- 
son in  the  chain  of  title,  previous  to  obtaining  the  title,  had 
done  any  acts  which  would  affect  the  title. -^^  In  some  states, 
however,  an  exception  to  this  rule  exists  by  reason  of  the  ap- 
plication of  the  rule  that  an  after-acquired  title  passes  by 
estoppel,  it  being  there  held  that,  when  one  has  made  a  con- 
veyance which  would  pass  an  after-acquired  title  as  against 
him,  it  will  have  the  same  effect  as  against  a  purchaser  from 
him  of  such  after-acquired  title,  who  has  no  actual  notice 
of  the  previous  conveyance,  such  purchaser  being  thus  in 
effect  charged  with  notice  of  such  conveyance  by  its  presence 
on  the  records.^-  But  occasionally  the  rule  as  to  the  passing 
of  an  after-acquired  title  has  not  been  applied  as  against  a 
purchaser  of  such  title  without  notice  of  the  previous  con- 
affect  with  notice  a  person  who  subsequently  obtains  a  conveyance 
from  the  first  grantor.  Roberts  v.  Bourne,  23  Me.  165,  39  Am.  Dec. 
614;  Frank  v.  Heidenheimer,  84  Tex.  642;  Hetherington  v.  Claris,  30 
Pa.  St.  393.  And  so  the  record  of  a  conveyance  of  an  equitable  title 
from  one  who  has  such  title  only,  while  notice  to  a  subsequent  pur- 
chaser of  the  same  title  from  the  same  grantor,  is  not  notice  to  one 
who  purchases  from  the  person  who  has  the  legal  title.  Tarbell  v. 
West,  86  N.  Y.  280.     Compare  Edwards  v.  McKernan,  55  Mich.  520. 

11  Calder  v.  Chapman,  52  Pa.  St.  359,  91  Am.  Dec.  163,  6  Gray's  Cas. 
489;  Bingham  v.  Kirkland,  34  N.  J.  Eq.  229;  Farmers'  Loan  &  Trust 
Co.  V.  Maltby,  8  Paige  (N.  Y.)  361;  Page  v.  Waring,  76  N.  Y.  463; 
Frank  v.  Heidenheimer,  84  Tex.  642;  2  Pomeroy,  Eq.  Jur.  §  658,  p. 
914,  note  1.  See  note  to  Ford  v.  Unity  Church  Soc.  of  St.  Joseph,  23 
L.  R.  A.  565. 

12  White  V.  Patten,  24  Pick.  (Mass.)  324,  6  Gray's  Cas.  486;  Ayer 
V.  Philadelphia  &  Boston  Brick  Co.,  159  Mass.  84;  Knight  v. 
Thayer,  125  Mass.  25;  McCusker  v.  McEvey,  9  R.  L  528,  10  R.  I.  606; 
Powers  V.  Patten,  71  Me.  583;  Jarvis  v.  Aikens,  25  Vt.  635;  Tefft  v. 
Munson,  57  N.  Y.  97. 

(1080) 


Ch.  31]  PRIORITY  AND  RECORDING.  i^  477 

veyance,  it  being  regarded  as  contrary  to  the  purpose  and 
spirit  of  the  recording  acts  to  thus  hold  him  bound,  at  his 
peril,  to  examine  the  records  for  conveyances  outside  of  the 
chain  of  title,  for  the  sake  of  protecting  a  previous  purchaser 
who,  through  his  negligent  failure  to  examine  the  records, 
obtained  a  defective  title.^-'^ 

By  statute  in  many  of  the  states,  a  purchaser  cannot  as- 
sert his  claim  as  against  a  prior  unrecorded  instrument  un- 
less he  first  record  his  own  conveyance. -^^  Apart  from  such 
a  statutory  provision,  one  may,  without  recording  his  con- 
veyance, claim  as  a  purchaser  for  value  without  notice  as 
against  the  prior  unrecorded  instrument.^  ^ 

§  477.     Sufficiency  of  record. 

In  order  that  the  record  of  an  instrument  shall  operate 
as  constructive  notice  to  subsequent  purchasers,  the  instru- 
ment must  be  such  that  its  record  is  authorized.  Conse- 
quently, if  it  is  not  duly  executed,^  ^  or  if  it  is  not  acknowl- 
edged or  certified  as  required  by  law,^'^  its  record  does  not 

isCalder  v.  Chapman,  52  Pa.  St.  359,  6  Gray's  Cas.  489;  Bingham 
V.  Kirkland,  34  N.  J.  Eq.  229.  See  Rawle,  Covenants,  §§  259-261; 
Way  V.  Arnold,  18  Ga.  181;  Bennett  v.  Davis,  90  Me.  457;  Salisbury 
Sav.  Soc.  V.  Cutting,  50  Conn.  113,  reporter's  note;  2  Smith,  Lead.  Cas. 
848. 

14  1  Stimson's  Am.  St.  Law,  §  1611.  See  Simmons  v.  Stum,  101 
111.  454;  Clabaugh  v.  Byerly,  7  Gill  (Md.)  354,  48  Am.  Dec.  575; 
Pennsylvania  Salt  Mfg.  Co.  v.  Neel,  54  Pa.  St.  9;  Westbrook  v.  Glea- 
son,  79  N.  Y.  23. 

15  Coster's  Ex'rs  v.  Bank  of  Georgia,  24  Ala.  37;  Sanborn  v.  Adair, 
29  N.  J.  Eq.  338;  McGuire  v.  Barker,  61  Ga.  339;  Steele's  Lessee  v. 
Spencer,  1  Pet.  (U.  S.)  552;  Miller  v.  Merine  (C.  C.)  43  Fed.  261; 
Webb,  Record  of  Title,  §§  13,  166. 

iG  Carter  v.  Champion,  8  Conn.  549,  21  Am.  Dec.  695;  Parret  v. 
Shaubhut,  5  Minn.  323  (Gil.  258),  80  Am.  Dec.  424;  Van  Thorniley  v. 
Peters,  26  Ohio  St.  471;  Racouillat  v.  Sansevain,  32  Cal.  376;  Pringle 
V.  Dunn,  37  Wis.  449,  19  Am.  Rep.  772. 

17  Graves  v.  Graves,  6  Gray  (Mass.)  391,  6  Gray's  Cas.  401;  Heister 

(1081) 


§   477  REAL  PROPERTY.  [Ch.  31 

operate  as  constructive  notice  to  subsequent  purcliasers. 
Moreover,  in  order  to  give  priority  as  against  a  subsequent 
purchaser,  the  instrument  must  describe  the  land  with  suffi- 
cient accuracy  to  enable  one  examining  the  record  to  identify 
the  land.^^ 

An  index  of  the  grantors  and  grantees  as  named  in  the 
recorded  conveyance  is  ordinarily  kept  in  the  record  office, 
and  the  statute  frequently  so  requires.^ '^  In  some  states  the 
index  is  in  effect  part  of  the  record,  so  that,  although  the  con- 
veyance is  recorded,  it  is  not  notice  to  a  subsequent  pur- 
chaser unless  it  appears  correctly  on  the  index.  ^*^  In  other 
states  a  purchaser  is  bound  by  the  prior  conveyance,  even 
though  it  is  not  indexed,  or  is  indexed  under  a  wrong  name.^^ 

The  courts  of  the  different  states  are  divided  upon  the 
question  as  to  who  must  suffer  the  loss  occasioned  by  an 
error  made  by  the  officer  in  recording  a  conveyance  deposit- 
ed with  him  for  record.  Some  courts  hold  that  a  grantee, 
by  lodging  the  instrument  with  the  proper  officer  for  record, 

V.  Fortner,  2  Binn.  (Pa.)  40,  4  Am.  Dec.  417,  6  Gray's  Cas.  390;  Fryer 
V.  Rockefeller,  63  N.  Y.  268;  Fleschner  v.  Sumpter,  12  Or.  161; 
Raines  v.  Walker,  77  Va.  92;  Bishop  v.  Schneider,  46  Mo.  472,  2  Am. 
Rep.  533;  Girardin  v.  Lampe,  58  Wis.  267;  Hayden  v.  Moffatt,  74 
Tex.  647,  15  Am.  St.  Rep.  866;  Herndon  v.  Kimball,  7  Ga.  432,  50  Am. 
Dec.  406;  Cockey  v.  Milne's  Lessee,  16  Md.  200. 

18  Bright  V.  Buckman  (C.  C.)  39  Fed.  247;  Rodgers  v.  Cavanaugh, 
24  111.  583;  Bailey  v.  Galpin,  40  Minn.  319;  Banks  v.  Ammon,  27  Pa. 
St.  172;  Chamberlain  v.  Bell,  7  Cal.  292,  68  Am.  Dec.  260.  See  Carter 
V.  Hawkins,  62  Tex.  393. 

19  1  Stimson's  Am.  St.  Law,  §  1620. 

20  Barney  v.  McCarty,  15  Iowa,  510,  6  Gray's  Cas.  413;  Lombard  v. 
Culbertson,  59  Wis.  433;  Ritchie  v.  Griffiths,  1  Wash.  St.  429,  22  Am. 
St.  Rep.  155. 

21  Curtis  V.  Lyman,  24  Vt.  338,  58  Am.  Dec.  174,  6  Gray's  Cas.  405; 
Mutual  Life  Ins.  Co.  of  New  York  v.  Dake,  87  N.  Y.  257;  Green  v. 
Garrington,  16  Ohio  St.  548,  91  Am.  Dec.  103;  Stockwell  v.  McHenry, 
107  Pa.  St.  237,  52  Am.  Rep.  475;  Bishop  v.  Schneider,  46  Mo.  472,  2 
Am.  Rep.  533;  Chatham  v.  Bradford,  50  Ga.  327,  15  Am.  Rep.  692; 
Davis  V.  Whitaker,  114  N.  C.  279. 

(1082) 


Ch    31]  PRIORITY  AND  RECORDING.  §  478 

acquits  himself  of  all  responsibility  as  to  the  actual  record- 
ing, and  that  from  that  time  it  is  notice  to  subsequent  pur- 
chasers of  what  it  contains,  and  not  of  what  the  recording 
officer  may  make  it  show  on  the  record."  Other  courts  hold 
that  subsequent  purchasers  are  bound  only  by  what  the  rec- 
ord shows,  and  that  the  grantee  in  a  conveyance,  in  order 
to  absolutely  guard  against  mistakes  by  the  recorder,  which 
will  jeopardize  liis  rights  as  against  subsequent  purchasers, 
must  at^certain  that  the  recording  is  correctly  done.^^ 

§  478.     Persons  affected  with  notice  by  record. 

The  recording  acts  usually  in  terms  require  the  record  of 
an  instrument  for  the  benefit  of  a  subsequent  purchaser  or 
incumbrancer  only.  Consequently,  one  who  has  previously 
acquired  an  interest  in  the  land,  or  who  is  a  party  to  the  in- 
strument itself,  is  not  charged  with  notice  of  an}''  facts  by 
the  record. ^^  So,  a  mortgagee  of  the  land  need  not,  except 
for  the  purpose  of  foreclosure,  examine  the  records  subse- 

22  Mangold  v.  Barlow,  61  Miss.  593,  48  Am.  Rep.  84;  Mims  v.  Mims, 
35  Ala.  23,  6  Gray's  Gas.  409;  Merrick  v.  Wallace,  19  111.  486;  Lewis 
V.  Hinman,  56  Conn.  55;  Gillespie  v.  Rogers,  3L46  Mass.  610;  Schell  v. 
Stein,  76  Pa.  St.  398;  Wood's  Appeal,  82  Pa.  St.  116. 

23  Frost  V.  Beekman,  1  Johns.  Ch.  (N.  Y.)  288,  6  Gray's  Cas.  403; 
Beekman  v.  Frost.  18  Johns.  (N.  Y.)  544;  New  York  Life  Ins.  Co.  v. 
White,  17  N.  Y.  469;  Miller  v.  Bradford,  12  Iowa,  14,  6  Gray's  Cas. 
410;  Barnard  v.  Campau,  29  Mich.  162;  Jennings'  Lessee  v.  Wood,  20 
Ohio,  261;  Sawyer  v.  Adams,  8  Vt.  172,  30  Am.  Dec.  459;  Pringle  v. 
Dunn,  37  Wis.  449,  19  Am.  Rep.  772;  Shepherd  v.  BuWvhalter,  13  Ga. 
443,  58  Am.  Dec.  523;  Gilchrist  v.  Goiigh,  63  Ind.  576,  30  Am.  Rep. 
250;  Ritchie  V.  Griffiths,  1  Wash.  St.  429,  22  Am.  St.  Rep.  155.  But 
as  to  New  York,  see  Mutual  Life  Ins.  Co.  of  New  York  v.  Dake,  87 
N.  Y.  257. 

24  Webb,  Record  of  Title,  §  163:  2  Pomeroy.  Eq.  Jur.  §  657;  Stuyve- 
sant  V.  Hone,  1  Sandf.  Ch.  (N.  Y.)  419;  Stuyvesant  v.  Hall.  2  Barb. 
Ch.  (N.  Y.)  151;  Davis  v.  Monroe,  187  Pa.  St.  212,  67  Am.  St.  Rep. 
581;  Karns  v.  Olney,  80  Cal.  90,  13  Am.  St.  Rep.  101;  Corey  v.  Smal- 
ley,  106  Mich.  257,  58  Am.  St.  Rep.  474 ;  Holley  v.  Hawley,  39  Vt.  525, 
94  Am.  Dec.  350. 

(1083) 


g   479  REAL  PROPERTY.  [Ch.    31 

quent  to  his  mortgage  before  taking  any  action  in  connection 
with  his  mortgage. ^^ 

§  479.     Notice  as  substitute  for  recording. 

The  statutes  requiring  a  record  of  a  conveyance  in  order 
to  make  it  effective  as  against  a  subsequent  purchaser  have 
almost  invariably  been  construed  as  not  applying  in  favor 
of  one  who  has  notice  of  a  prior  unrecorded  conveyance.^ ^ 
This  seems  to  be  merely  a  logical  result  of  the  construction 
put  upon  the  recording  acts  as  making  record  of  an  instru- 
ment equivalent  to  notice  thereof  on  the  part  of  a  subsequent 
purchaser,  since  this  construction  implies  that  notice  other- 
wise obtained  will  have  the  same  effect."'^  In  many  cases, 
however,  the  rule  that  notice  otherwise  obtained  is  sufficient, 
though  the  prior  instrument  was  not  recorded,  is  based  upon 
the  theory  that  the  taking  of  a  conveyance  Avith  the  purpose 
of  impairing  prior  rights  of  which  he  has  notice  constitutes 
a  fraud,  this  view  being  adopted  from  the  decisions  of  the 
English  courts  in  connection  with  the  local  registration  acts 
of  that  country.-^  In  many  of  the  statutes  it  is  expressly 
provided  that  the  conveyance  must  be  recorded  only  as  against 

25  George  v.  Wood,  9  Allen  (Mass.)  80,  6  Gray's  Gas.  492;  Wood- 
ward V.  Brown,  119  Cal.  283,  63  Am.  St.  Rep.  108;  Heaton  v.  Prather, 
84  111.  330;  Birnle  v.  Main,  29  Ark.  591.  See  post,  §  536.  So,  a 
judgment  lienor  may  release  part  of  his  lien  without  first  examining 
the  records  to  see  how  it  will  affect  other  persons.  Taylor's  Ex'rs  v. 
Maris,  5  Rawle  (Pa.)  51. 

2G  2  Pomeroy,  Eq.  Jur.  g  649;  Webb,  Record  of  Title,  §  201;  2  White 
&  T.  Lead.  Gas.  Eq.  213;  Lamont  y.  Gheshire,  65  N.  Y.  30. 

In  two  states  the  statute  has  been  construed  as  so  absolutely  re- 
quiring the  record  of  a  mortgage  as  to  make  it  invalid  even  as 
against  a  subsequent  purchaser  having  actual  notice  thereof.  May- 
ham  v.  Goombs,  14  Ohio,  428,  6  Gray's  Gas.  441;  Home  Building  & 
Loan  Ass'n  of  Golumbus  v.  Clark,  43  Ohio  St.  427;  Quinnerly  v. 
Quinnerly,  114  N.  C.  145. 

27  2  Pomeroy,  Eq.  Jur.  §  665. 

28  2  Pomeroy,  Eq.  Jur.  §^§  659,  660;  2  White  &  T.  Lead.  Gas.  Eq.  213. 

(1084) 


Cll    3X]  PRIORITY   AND  RECORDING.  §   479 

a  purchaser  "witL  notice,"  or  'Svith  actual  notice,"  or  equiv- 
alent expressions  are  used.^® 

In  the  majority  of  the  states  it  is  sufficient,  in  order  to 
deprive  a  person  of  the  right  to  claim  as  against  a  prior  un- 
recorded conveyance,  that  he  has  either  actual  knowledge  of 
such  conveyance,  or  that  he  has  information  sufficient  to 
put  him  on  inquiry  in  regard  to  such  conveyance,  and  this 
construction  has  been  given  even  to  statutes  which  provide 
that  an  unrecorded  conveyance  shall  be  void  except  as  against 
persons  having  "actual  notice."^"  But  in  one  state,  at  least, 
such  a  statutory  requirement  of  "actual  notice"  has  been  held 
to  involve  the  necessity  of  actual  knowledge  of  the  prior  con- 
veyance.^^ That  information  sufficient  to  put  one  on  inquiry 
in  regard  to  an  adverse  right  is  prima  facie  sufficient  to 
charge  one  with  notice  of  such  right  is  a  principle  well  set- 
tled in  equity,  without  reference  to  the  recording  acts,  and 
the  question  as  to  what  constitutes  such  knowledge  in  con- 
nection with  these  acts,  when  actual  knowledge  is  not  re- 
quired, is  determined  by  an  application  of  equitable  consid- 
erations. 

The  information  thus  sufficient  to  put  one  on  inquiry  may 
consist  of  a  statement  made  by  the  claimant  of  the  adverse 
right,^^  or  by  a  third  person  not  pecuniarily  interested,  if 

29  See  1  Stimson's  Am.  St.  Law,  §  1611;  2  Pomeroy,  Eq.  Jur.  §  646, 
and  notes;  Webb,  Record  of  Title,  §  222. 

30  Williamson  v.  Brown,  15  N.  Y.  354,  6  Gray's  Gas.  449;  Maupin 
V.  Emmcis,  47  Mo.  304,  6  Gray's  Gas.  458;  Drey  v.  Doyle,  99  Mo. 
459;  Erickson  v.  Rafferty,  79  111.  209;  Clark  v.  Holland,  72  Iowa,  34; 
Knapp  V.  Bailey,  79  Me.  195;  Brinkman  v.  Jones,  44  Wis.  498;  Gaines 
V.  Summers,  50  Ark.  322;  Hunt  v.  Dunn,  74  Ga.  124;  Musgrove  v. 
Bonser,  5  Or.  313,  20  Am.  Rep.  737;  Greer  v.  Higgins,  20  Kan.  420. 

31  Lamb  v.  Pierce,  113  Mass.  72,  6  Gray's  Cas.  462;  Pomroy  v. 
Stevens,  11  Mete.  (Mass.)  244,  6  Gray's  Cas.  446.  See  2  White  &  T. 
Lead.  Cas.  Eq.  218. 

32  Davis  V.  Kennedy,  105  111.  300;  Nelson  v.  Sims,  23  Miss.  383,  57 
Am.  Dec.  144;  Epley  v.  Witherow,  7  Watts  (Pa.)  163. 

(1085) 


§   479  REAL  PROPERTY.  [Ch.    31 

lie  is  iu  a  position  to  know  the  facts,  and  his  statement  is 
definite.^^  The  information  must  be  sufficient  to  furnish 
a  basis  for  investigation,  and  a  mere  rumor  or  indefinite  state- 
ment that  there  is  an  adverse  claim  is  not  sufficient  to  put 
one  on  inquiry.^^  Knowledge  bj  the  purchaser  of  the  con- 
dition of  the  land,  as  by  the  presence  of  structures  thereon, 
may  likewise  be  sufficient  to  put  him  on  inquiry  as  to  wheth- 
er this  does  not  indicate  the  existence  of  some  adverse  right 
or  easement. "^^  The  fact  that  a  purchaser  obtains  the  prop- 
erty at  a  very  inadequate  price  is  also,  it  is  said,  a  fact 
which  should  put  him  on  inquiry,  and  is  accordingly  at  least 
evidence  of  notice  by  him  of  an  adverse  claim.^^ 

If  one  put  on  inquiry  makes  such  investigation  as  may  rea- 
sonably be  demanded  of  a  person  of  ordinary  diligence  and 
understanding,  and  fails  to  ascertain  the  existence  of  the  ad- 
verse claim,  the  presumption  of  notice  is  rebutted.^ ''^  In 
some  cases,  however,  the  circumstances  may  be  such  that  a 
diligent  inquiry  would  necessarily  involve  the  ascertainment 

33  Butcher  v.  Yocum,  61  Pa.  St.  168,  100  Am.  Dec.  625;  Lawton  v. 
Gordon,  37  Cal.  202;  Jackson,  L.  &  S.  R.  Co.  v.  Davison,  65  Mich. 
416,  447;  Jaeger  v.  Hardy,  48  Ohio  St.  335;  Cox  v.  Milner,  23  111.  476; 
Curtis  V.  Mundy,  3  Mete.  (Mass.)  405;  1  White  &  T.  Lead.  Cas.  Bq. 
147. 

31  Maul  V.  Rider,  59  Pa.  St.  167;  Condit  v.  Wilson,  36  N.  J.  Eq.  370; 
Buttrick  v.  Hoi  den,  13  Mete.  (Mass.)  355;  Loughridge  v.  Bowland,  52 
Miss.  546;  Shepard  v.  Shepard,  36  Mich.  173;  Tompkins  v.  Hender- 
son, 83  Ala.  391;  City  of  Chicago  v.  Witt,  75  111.  211;  Smith  v.  Yule, 
31  Cal.  180,  89  Am.  Dec.  167. 

33  Webb  V.  Robbins,  77  Ala.  176;  Blatchley  v.  Osborn,  33  Conn.  226; 
Fresno  Canal  &  Irrigation  Co.  v.  Rowell,  80  Cal.  114,  13  Am.  St.  Rep. 
112;  Randall  v.  Silverthorn,  4  Pa.  St.  173;  Paul  v.  Connersville  &  N. 
J.  R.  Co.,  51  Ind.  527. 

36  Durant  v.  Crowell,  97  N.  C.  367;  Lounsbury  v.  Norton,  59  Conn. 
170;  Hoppin  v.  Doty,  25  Wis.  573. 

3T  Williamson  v.  Brown,  15  N.  Y.  354,  6  Gray's  Cas.  449;   Gregory 
V.  Savage,  32  Conn.  250;  Thompson  v.  Pioche,  44  Cal.  508;   Schweiss 
V.  Woodruff.  73  Mich.  473;  Cavin  v.  Middleton,  63  Iowa,  618;  2  Pome- 
roy,  Eq.  Jur.  §  607. 
(1086) 


Ch.  31]  PRIORITY  AND  RECORDING.  jj   479 

of  the  adverse  claim,  and  in  such  case  the  presumption  of  no- 
tice may  be  regarded  as  conclusive.^^  Each  case  must,  to 
a  very  considerable  degree,  depend  upon  its  o\vn  peculiar 
circumstances,  and  it  is  impossible  to  frame  any  absolute 
rule  by  which  to  determine  whether  an  intending  purchaser 
has  sufficient  information  to  put  him  on  inquiry,  and  what 
constitutes  due  and  sufficient  inquiry. 

Notice  to  agent. 


The  rule  that  notice  to  an  agent  is  notice  To  his  principal 
applies  in  the  case  of  a  purchaser  of  land  acting  through  an 
agent,  and  he  may  consequently  be  charged  with  notice  of 
adverse  claims  either  by  the  agent's  actual  knowledge,  or 
by  information  acquired  by  the  latter  sufficient  to  put  him 
on  inquiry.^^  The  limitations  upon  the  general  rule  in  con- 
nection with  the  time  of  the  acquisition  of  notice  by  the 
agent,  and  the  character  of  the  transaction  in  connection 
with  which  the  notice  is  received,  are  by  no  means  settled, 
and  are  properly  a  matter  for  consideration  in  a  treatise  on 
agency.  It  is  held  by  some  courts  that  notice  acquired  by 
the  agent  before  the  beginning  of  the  agency  is  in  no  case  to 
be  imputed  to  the  principal  ;^^  while  other  courts  hold  that 
such  notice  is  to  be  imputed  to  the  principal,  provided  the 
fact  of  which  he  has  received  notice  is  present  in  his  mind 
while  acting  for  the  principal,^^  and  provided  he  is  at  liberty 

38  2  Pomeroy,  Eq.  Jur.  §  608. 

39  Clark  V.  Fuller,  39  Conn.  238;  Smith  v.  Dixnton.  42  Iowa,  48; 
Hickman  v.  Green,  123  Mo.  165;  Cowan  v.  Withrow,  111  N.  C.  306; 
Bigley  v.  Jones,  114  Pa.  St.  510;  Russell  v.  Sweezey,  22  Mich.  235. 

40Huffcutt,  Agency  (2d  Ed.)  §  144;  Houseman  v.  Girard  Mut. 
Building  &  Loan  Ass'n,  81  Pa.  St.  256;  Kauffman  v.  Robey,  60  Tex. 
308,  48  Am.  Rep.  264;  McCormick  v.  Joseph,  S3  Ala.  401. 

41  Distilled  Spirits,  11  Wall.  (U.  S.)  356;  Arrington  v.  Arrington, 
114  N.  C.  151;  Constant  v.  University  of  Rochester,  111  N.  Y.  604. 

(1087) 


§   480  REAL  PROPERTY.  [Ch.   31 

to  disclose  it  to  the  principal.^"  Notice  of  a  fact  to  the  agent 
will  not  in  any  case  bind  the  principal  if  the  fact  is  not 
within  the  scope  of  the  agency."*^  Kor  is  the  principal 
charged  with  notice  if  the  agent  is  acting  in  fraud  of  the 
principal,  and,  to  further  his  own  ends,  conceals  the  fact 
from  the  principal.^'* 

§  480.     Notice  from  possession. 

An  intending  purchaser  of  land  is,  as  a  general  rule,  bj 
the  fact  that  the  land  is  in  the  possession  of  a  person  other 
than  he  who  is  undertaking  to  sell  it,  charged  with  notice 
of  the  rights  of  such  person,  to  the  extent  that  he  could,  by 
reasonable  inquiry,  have  ascertained  the  nature  of  such 
rights.*^  This  presumption  of  notice  exists,  even  though 
the  intending  purchaser  is  a  nonresident,  or  for  other  rea- 
sons is  Avithout  actual  knowledge  of  the  possession  by  a  third 
person.  ^^ 

42  Distilled  Spirits,  11  Wall.  (U.  S.)  356;  Littauer  v.  Houck,  92 
Mich.  162. 

43  Trentor  v.  Pothen,  46  Minn.  298;  Pringle  v.  Dunn,  37  Wis.  449; 
Anketel  v.  Converse,  17  Ohio  St.  11,  91  Am.  Dec.  115;  Tucker  v.  Til- 
ton,  55  N.  H.  223;  Roach  v.  Karr,  18  Kan.  529;  Wood  v.  Rayburn,  18 
Or.  3. 

44  2  Pomeroy,  Eq.  Jur.  §§  674,  675;  National  Life  Ins.  Co.  of  United 
States  V.  Minch,  53  N.  Y.  144;  Hickman  v.  Green,  123  Mo.  165; 
Frenkel  v.  Hudson,  82  Ala.  158;  Allen  v.  South  Boston  R.  Co.,  150 
Mass.  200,  15  Am.  St.  Rep.  185. 

45Kirby  v.  Tallmadge,  160  U.  S.  379;  Rorer  Iron  Co.  v.  Trout,  83 
Va.  397,  5  Am.  St.  Rep.  285;  Pleasants  v.  Blodgett,  39  Neb.  741,  42 
Am.  St.  Rep.  624;  Strickland  v.  Kirk,  51  Miss.  795;  Truesdale  v. 
Ford,  37  HI.  210;  Phelan  v.  Brady,  119  N.  Y.  587;  Kerr  v.  Day,  14  Pa. 
St.  112,  53  Am.  Dec.  526;  Williamson  v.  Brown,  15  N.  Y.  354,  6  Gray's 
Cas.  449;  Maupin  v.  Emmons,  47  Mo.  304,  6  Gray's  Cas.  458;  Toland 
v.  Corey,  6  Utah,  392. 

46  Hodge's  Ex'rs  v.  Amerman,  40  N.  J.  Eq.  99;  Edwards  v.  Thomp- 
son, 71  N.  C.  177;  Hottenstein  v.  Lerch,  104  Pa.  St.  454;  Tillotson  v. 
Mitchell,  111  ni.  518;  Ranney  v.  Hardy,  43  Ohio  St.  157;  Sheorn  v. 
Kobinson,  22  S.  C.  32;  Hyde  v.  Mangan,  88  Cal.  319;  Woodson  v.  Col- 

(1088) 


Ch.  31]  PRIORITY   AND   RECORDING.  §   480 

The  possession  of  one  \vliose  title  is  of  record  is  not^  how- 
ever, notice  of  any  rights  in  him  other  than  those  that  ap- 
pear of  record,  the  pnrchaser  being  justified  in  attributing 
his  possession  to  his  record  title."* ^  By  some  courts  it  is  held 
that  the  continuance  in  possession  by  a  grantor,  after  convey- 
ing the  land,  is,  like  the  possession  of  any  other  person,  suffi- 
cient to  put  a  subsequent  purchaser  on  inquiry,  and  so  affect 
him  with  notice  of  any  rights  reserved  by  the  grantor.'** 
Other  courts  take  the  view  that  any  subsequent  purchaser 
from  the  grantee  is  entitled  to  rely  upon  the  conveyance  pur- 
porting to  dispose  of  all  the  gTantor's  title,  and  that  conse- 
quently he  is  justified  in  assuming,  without  inquiry,  that 
the  possession  of  the  grantor  is  by  sufferance  of  the  grantee, 
and  does  not  indicate  the  existence  of  any  rights  in  him.^^ 

By  the  majority  of  the  decisions,  a  purchaser  is  not  only 
charged  with  the  rights  of  the  person  in  possession,  but,  if 
such  person  is  tenant  under  another,  he  is  charged  with  notice 
of  the  rights  of  such  other.^*^ 

lins,  56  Tex.  168;  Phelan  v.  Brady,  119  N.  Y.  587;  Galley  v.  Ward,  60 
N.  H.  33.     See  Simmons  Creek  Coal  Co.  v.  Doran,  142  U.  S.  417,  442. 

To  satisfy  a  requirement  of  "actual  notice"  in  the  recording  acts, 
a  knowledge  by  the  purchaser  of  the  possession  has  been  held  to  be 
necessary.  Brinkman  v.  Jones,  44  Wis.  498.  See  Porter  v.  Sevey,  43 
Me.  519;  Harral  v.  Leverty,  50  Conn.  46. 

*7  piumer  v.  Robertson,  6  Serg.  &  R.  (Pa.)  184;  Smith  v.  Yule,  31 
Cal.  180,  89  Am.  Dec.  167;  Great  B'alls  Co.  v.  Worster,  15  N.  H.  412; 
Fargason  v.  Edrington,  49  Ark.  207. 

48  Illinois  Cent.  R.  Co.  v.  McCullough,  59  111.  166;  Pell  v.  McElroy, 
36  Cal.  268;  McLaughlin  v.  Shepherd,  32  Me.  143,  52  Am.  Dec.  646; 
Turman  v.  Bell,  54  Ark.  273,  26  Am.  St.  Rep.  35;  Daubenspeck  v. 
Piatt,  22  Cal.  330;  New  v.  Wheaton,  24  Minn.  406. 

48  Van  Keuren  v.  Central  R.  Co.  of  New  Jersey,  38  N.  J.  Law,  165; 
Bloomer  v.  Henderson,  8  Mich.  395,  77  Am.  Dec.  453;  Koon  v.  Tramel, 
71  Iowa,  132;  Hafter  v.  Strange,  65  Miss.  323,  7  Am.  St.  Rep.  659; 
Eylar  v.  Eylar,  60  Tex.  315. 

50  Hanly  v.  Morse,  32  Me.  287;  Brunson  v.  Brooks,  68  Ala.  248 
O'Rourke  v.  O'Connor,  39  Cal.  442;  Tillotson  v.  Mitchell,  111  111.  523 
Phelan  v.  Brady,  119  N.  Y.  587;   Glendenning  v.  Bell,  70  Tex.  632 

(1089) 
Real  Prop.— 69. 


§   48  L  REAL  PROPERTY.  [Ch.    31 

The  possession,  to  charge  a  purchaser  with  notice,  must 
be  an  actual  and  visible  possession,^^  and  must  not  be  in 
connection  witn  another  person  who  appears  from  the  rec- 
ords to  have  the  title,  since  the  purchaser  is  then  justified  in 
assuming  that  the  possession  is  based  on  the  permission  of 
the  latter.  ^2 

The  presumption  of  notice  of  the  rights  of  a  third  person 
arising  from  his  possession,  or  from  the  possession  of  his 
tenant,  is  not,  by  the  weight  of  authority,  conclusive,  and 
the  purchaser  may  show  that  he  made  due  inquiry,  from  all 
accessible  sources  of  information,  as  to  the  rights  of  such 
person  in  possession,  and  had  reason  to  believe  that  such 
person  was  in  possession  merely  under  the  vendor,  and 
claimed  no  rights."*^ 

§  481.     Notice  from  statements  in  instruments  of  title. 

A  purchaser  of  land  is  affected  with  notice  of  all  matters 
stated  or  referred  to  in  the  conveyances  or  other  instru- 
ments, of  which  he  has  actual  or  constructive  notice,  as  be- 
ing recorded  or  otherwise,  so  far  as  those  statements  or  ref- 
erences may  possibly   affect  the  title,   and  he  is  bound  to 

Hottenstein  v.  Lerch,  104  Pa.  St.  454;    Wilkins  v.  Bevier,  43  Minn. 
213,  19  Am.  St.'Rep.  238;  2  Pomeroy,  Bq.  Jur.  §  625. 

51  Martin  v.  Jackson,  27  Pa.  St.  504,  67  Am.  Dec.  489;  McMechan  v. 
Griffing.  3  Pick.  (Mass.)  149,  15  Am.  Dec.  198;  Mason  v.  Mullahy,  145 
111.  383;  Ranney  v.  Hardy,  43  Ohio  St.  157;  Simmons  Creek  Coal 
Co.  V.  Doran,  142  U.  S.  417,  442. 

52  Bell  V.  Twilight,  22  N.  H.  500;  Butler  v.  Stevens,  26  Me.  484 
Billington's  Lessee  v.  Welsh,  5  Binn.  (Pa.)  132,  6  Am.  Dec.  406 
Townsend  v.  Little,  109  U.  S.  510;  Harris  v.  Mclntyre,  118  111.  275 
Lindley  v.  Martindale,  78  Iowa,  379;  Watt  v.  Parsons,  73  Ala.  202 
Smith  V.  Yule,  31  Cal.  180,  89  Am.  Dec.  167;  Pope  v.  Allen,  90  N.  Y. 
298. 

53  Williamson  v.  Brown,  15  N.  Y.  354,  6  Gray's  Cas.  449;  Trum- 
power  V.  Marcey,  92  Mich.  529;  Hellman  v.  Levy,  55  Cal.  117;  Rogers 
V.  Jones,  8  N.  H.  264;  2  Pomeroy,  Eq.  Jur.  §§  623,  624;  2  White  &  T. 
Lead.  Cas.  Eq.  182. 

(1090) 


Ch.  31]  PRIORITY   AND  RECORDING.  §   4g2 

make  any  inquiries  or  researches  suggested  by  such  state- 
ments or  references.'^'*  He  is  not,  however,  so  charged  with 
notice  of  matters  contained  in  a  conveyance  which  is  not  a 
part  of  the  chain  of  title  under  which  he  claims,  and  which 
is  not  referred  to  in  any  instrument  constituting  a  part  of 
such  chain.^^'  Notice  thus  acquired  by  references  in  the 
chain  of  title  is  sufficient  to  defeat  any  claim  of  priority  based 
upon  the  failure  to  record  the  previous  conveyance,^*^  even, 
it  seems,  when  the  statute  invalidates  such  imrecorded  con- 
veyance except  as  against  one  having  ''actual"  notice.'^'^ 

§  482.     Purchasers  under  particular  classes  of  conveyances. 

In  some  states  the  grantee  in  a  quitclaim  deed,  which  pur- 
ports to  convey  only  such  right  and  title  as  the  grantor  has, 
cannot  claim  priority,  as  a  bona  fide  purchaser,  over  a  pre- 
vious conveyance,  which  has  not  been  recorded,  the  theory 
being  that  the  purchaser  is,  by  the  form  of  the  instrument, 
charged  with  notice  that  there  is  some  outstanding  claim  or 
interest.^^     This  view,  however,  has  been  repudiated  in  other 

54McPhersoii  v.  Rollins,  107  N.  Y.  316,  1  Am.  St.  Rep.  826;  Sioux 
City  &  St.  P.  R.  Co.  Y.  Singer,  49  Minn.  301,  32  Am.  St.  Rep.  554; 
Stewart  v.  Matheny,  66  Miss.  21,  14  Am.  St.  Rep.  538;  Crawford  v. 
Chicago,  B.  &  Q.  R.  Co.,  112  111.  314;  Gaines  v.  Summers,  50  Ark.  322; 
Smith  V.  Burgess,  133  Mass.  513;  Buchanan  v.  Balkum,  60  N.  H.  406; 
2  Pomeroy,  Eq.  Jur.  §§  626-631. 

55  Hetherington  v.  Clark,  30  Pa.  St.  393;  Grundies  v.  Reid,  107 
111.  304;  Ely  v.  Wilcox,  20  Wis.  523;  Hazlett  v.  Sinclair,  76  Ind.  488, 
40  Am.  Rep.  254;  Knox  County  v.  Brown,  103  Mo.  223. 

56Rosser  V.  Cheney,  61  Ga.  468;  McPherson  v.  Rollins,  107  N.  Y. 
316,  1  Am.  St.  Rep.  826;  Morris  v.  Hogle,  37  111.  150,  87  Am.  Dec.  243; 
Parke  v.  Neeley,  90  Pa.  St.  52;  Bronson  v.  Wanzer,  86  Mo.  408. 

57  George  v.  Kent,  7  Allen  (Mass.)  16,  6  Gray's  Cas.  457;  Sargent 
V.  Hubbard,  102  Mass.  380;  Hamilton  v.  Nutt,  34  Conn.  501;  Pringle 
V.  Dunn,  37  Wis.  449,  19  Am.  Rep.  772. 

58  Marshall  v.  Roberts,  18  Minn.  405  (Gil.  365),  6  Gray's  Cas.  425; 
Peters  v.  Cartler,  80  Mich.  124,  20  Am.  St.  Rep.  508;  Johnson  v.  Wil- 
liams, 37  Kan.  179,  1  Am.  St.  Rep.  243;  Garrett  v.  Christopher,  74 
Tex.  454,  15  Am.  St.  Rep.  850;  Baker  v.  Woodward,  12  Or.  3;  Steele 

(1091) 


§   482  REAL.  PROPERTY.  [Qh.  31 

jurisdictions  as  not  justified  by  the  purpose  or  the  language 
of  a  quitclaim  deed.^^  And  even  in  states  in  which  the  gran- 
tee himself  in  a  quitclaim  deed  is  charged  with  notice  of  an 
adverse  right,  a  purchaser  from  him  for  value  is  not  so 
charged,  since  otherwise  the  occurrence  of  one  quitclaim  deed 
in  the  chain  of  title  would  to  a  great  extent  render  such  a 
title  unmarketable.^" 

A  conveyance  purporting  to  convey  land  by  a  general  de- 
scription, such  as  "all  my  land,"  or  "all  the  land  which  I 
have,"  or  "all  which  I  now  have,"  in  a  certain  place,  does 
not,  it  has  been  held,  take  precedence  of  a  prior  unrecorded 
conveyance  of  particular  land  in  such  place,  the  evident  in- 
tent being  to  convey  only  such  land  as  the  grantor  still  re- 
tains.^^ 

By  some  courts  it  has  been  held  that  a  purchaser  from  an 

V.  Sioux  Valley  Bank,  79  Iowa,  339,  18  Am.  St.  Rep.  370;  Meikel  v. 
Borders,  129  Ind.  529. 

59  Moelle  V.  Sherwood,  148  U.  S.  21;  Chapman  v.  Sims,  53  Miss. 
154;  Fox  V.  Hall,  74  Mo.  315,  41  Am.  Rep.  316;  Frey  v.  Clifford,  44 
Cal.  335;  Nidever  v.  Ayers,  83  Cal.  39;  Brown  v.  Banner  Coal  &  Coal 
Oil  Co.,  97  111.  214,  37  Am.  Rep.  105. 

That  a  sheriff's  conveyance  of  "all  the  right,  title,  and  interest"  of 
the  execution  creditor  in  certain  described  land  does  not  deprive 
the  purchaser  of  his  rights  as  against  a  prior  unrecorded  convey- 
ance, see  Woodward  v.  Sartwell,  129  Mass.  210,  and  Parker  v.  Prescott, 
87  Me.  444;  and  that  a  conveyance  by  a  private  grantor  in  the  same 
terms  does  not  have  such  effect,  see  Dow  v.  Whitney,  147  Mass.  1,  6 
Gray's  Cas.  434.  The  fact  that  the  conveyance  is  by  quitclaim  may, 
however,  be  considered  on  the  issue  of  good  faith.  Post  v.  Inhab- 
itants of  Foxborough,  131  Mass.  202. 

GO  Winkler  v.  Miller,  54  Iowa,  476;  Meikel  v.  Borders,  129  Ind.  529; 
Snowden  v.  Tyler,  21  Neb.  199;  Sherwood  v.  Moelle  (C.  C.)  36  Fed. 
478. 

61  Fitzgerald  v.  Libby,  142  Mass.  235,  6  Gray's  Cas.  427;  Callanan 
V.  Merrill,  81  Iowa,  73;  Coe  v.  Persons  Unknown,  43  Me.  432;  Eaton 
V.  Trowbridge,  38  Mich.  454.  See  Butterfield  v.  Smith,  11  111.  485. 
In  Hetherington  v.  Clark,  30  Pa.  St.  393,  the  question  whether  such  a 
conveyance  was  intended  to  convey  only  such  land  as  the  grantor 
still  retained  was  regarded  as  a  question  for  the  jury. 

(1092) 


Cil^   31]  PRIORITY  AND  RECORDING.  §  483 

heir  or  devisee  takes  subject  to  a  conveyance  by  the  ancestor, 
which  was  not  recorded,  on  the  theory  that  he  undertakes  to 
purchase  merely  the  interest  which  the  heir  or  devisee  has.®* 
But  in  other  states  it  has  been  held  more  consistently,  it 
would  seem,  with  the  policy  of  the  recording  laws,  that  a 
purchaser  from  an  heir  or  devisee  is,  like  a  purchaser  from 
any  other  person,  entitled  to  rely  upon  the  title  as  it  appears 
of  record.®^ 

§  483.    Purchasers  for  value. 

In  order  to  claim  priority  as  against  one  whose  rights  have 
first  accrued,  one  musfbe  a  purchaser  for  value,  and  one  who 
receives  a  conveyance  based  on  a  merely  "good,"  as  distin- 
guished from  a  "valuable,"  consideration,  takes  subject  to 
all  jjrior  conveyances  or  incumbrances.  This  is  a  principle 
of  equity,  independent  of  statute,  but  the  recording  acts  usu- 
ally in  terms  require  record  of  a  conveyance  only  as  against 
purchasers  for  valuable  consideration,  and,  in  the  absence  of 
such  an  express  declaration,  the  statutes  have  uniformly  been 
so  construed. ^^  One  is  not  a  purchaser  for  a  valuable  consid- 
eration, within  the  rule,  unless  he  has  parted  with  money  or 
money's  worth  in  consideration  of  the  conveyance.^^ 

The  question  in  regard  to  a  conveyance  by  a  debtor  to  a  cred- 
itor— that  is,  whether  an  "antecedent"  consideration  is  a  valu- 
able one — is  viewed  differently  by  different  courts.  By  per- 
haps the  weight  of  authority,  a  conveyance  made  merely  to 

62  Hancock  v.  Beverly's  Heirs,  6  B.  Mon.  (Ky.)  531;  Hill  v.  Meeker, 
24  Conn.  211.  Compare  Harlan's  Heirs  v.  Seaton  s  Heirs,  18  B.  Mon. 
(Ky.)  312. 

63Earle  v.  Fiske,  103  Mass.  491,  6  Gray's  Cas.  423;  Youngblood  v. 
Vastine,  46  Mo.  239;  Kennedy  v.  Northup,  15  111.  148;  Powers  v. 
McFerran,  2  Serg.  &  R.  (Pa.)  47;  McCulloch's  Lessee  v.  Eudaly,  3 
Yerg.  (Tenn.)  340. 

64  See  2  Pomeroy,  Eq.  Jur.  §§  656,  740-751;  1  Stimson's  Am.  St. 
Law,  §  1611;  Webb,  Record  of  Title,  §  204. 

65  2  Pomeroy.  Eq.  Jur.  §  747;  Webb,  Record  of  Title,  §  204. 

(1093) 


§  483  REAL  PROPERTY.  [Ch.   31 

secure  the  payment  of  the  debt  is  not  sufficient  to  protect  the 
purchaser  as  against  rights  previously  accrued,'^ ^  though  there 
are  decisions  to  the  contrary.**''  On  the  other  hand,  a  con- 
veyance not  to  secure  the  debt,  but  in  satisfaction  of  it,®^  or 
to  obtain  an  extension,^^  has  more  usually  been  regarded  as 
based  on  a  valuable  consideration. 

A  purchaser  who  has  not  paid  the  consideration  before  re- 
ceiving notice  of  the  earlier  conveyance  or  incumbrance  can- 
not claim  priority  thereto,  even  though  he  has  received  a 
transfer  of  the  legal  title. '^^  If  he  has  paid  part  of  the  con- 
sideration before  receiving  notice,  he  will,  by  the  weight  of 
authority,  be  protected  to  the  extent  of  the  amount  so  paid.^* 

66  Weaver  v.  Barden,  49  N.  Y.  286;  Koon  v.  Tramel,  71  Iowa,  132; 
Liggett  Spring  &  Axle  Co.'s  Appeal,  111  Pa.  Si.  291;  Goodwin  v. 
Massachusetts  Loan  &  Trust  Co.,  152  Mass.  189;  Union  Nat.  Bank  of 
Oshkosh  V.  Oium,  3  N.  D.  193,  44  Am.  St.  Rep.  533;  Funk  v.  Paul,  64 
Wis.  35,  54  Am.  Rep.  576;  Gilchrist  v.  Gough,  63  Ind.  576,  30  Am. 
Rep.  250;  Jones  v.  Robinson,  77  Ala.  499;  Chance  v.  McWhorter,  26 
Ga.  315;  Boxheimer  v.  Gunn,  24  Mich.  372. 

67Hayner  v.  Eberhardt,  37  Kan.  308;  Frey  v.  Clifford,  44  Cal.  335; 
Cummings  v.  Boyd,  83  Pa.  St.  372;  Brem  v.  Lockhart,  93  N.  C.  191. 

68  2  Pomeroy,  Eq.  Jur.  §  749;  State  Bank  of  St.  Louis  v.  Frame, 
112  Mo.  502;  Soule  v.  Shotwell,  52  Miss.  236;  Busey  v.  Reese,  38  Md. 
264;  Hanold  v.  Kays,  64  Mich.  439,  8  Am.  St.  Rep.  835;  Adams  v. 
Vanderbeck,  148  Ind.  92,  62  Am.  St.  Rep.  497;  Foorman  v.  Wallace, 
75  Cal.  552. 

69  Jones  V.  Robinson,  77  Ala.  499;  Koon  v.  Tramel,  71  Iowa,  132; 
Gary  v.  White,  52  N.  Y.  138;  Schumpert  v.  Dillard,  55  Miss.  348; 
Pittsburgh  &  C.  R.  Co.  v.  Barker,  29  Pa.  St.  160;  Gilchrist  v.  Gough,  63 
Ind.  576,  30  Am.  Rep.  250. 

7oSchultze  V.  Houfes,  96  111.  335;  Brown  v.  Welch,  18  111.  343,  68 
Am.  Dec.  549;  Blanchard  v.  Tyler,  12  Mich.  339,  86  Am.  Dec.  57;  Pat- 
ten V.  Moore,  32  N.  H.  382;  Wells  v.  Morrow,  38  Ala.  125;  Evans  v. 
Templeton,  69  Tex.  375,  5  Am.  St.  Rep.  71;  Lamar's  Ex'r  v.  Hale,  79 
Va.  147;  2  Pomeroy,  Eq.  Jur.  §§  691,  750. 

71  Webb,  Record  of  Title,  §  206;  2  Pomeroy,  Eq.  Jur.  §  750;  Baldwin 
v.  Sager,  70  111.  503;  Birdsall  v.  Cropsey,  29  Neb.  679;  Youst  v.  Mar- 
tin, 3  Serg.  &  R.  (Pa.)  423;  Juvenal  v.  Jackson,  14  Pa.  St.  519,  524; 
Marchbanks  v.  Banks,  44  Ark.  48. 

(1094) 


Ch.  31]  PRIORITY  AND  RECORDING.  §   485 

The  fact  that  the  purchaser  has  given  a  non-negotiable  securi- 
ty for  the  payment  of  the  price  does  not  constitute  him  a 
purchaser  for  value,  since  he  may  be  relieved  therefrom  in 
equity.  ^^ 

§  484.     Purchasers  with  notice  from  purchasers  without  notice. 

A  purchaser  may  not  only  enjoy  the  proi^erty  free  from 
any  adverse  claims  of  which  he  had  no  notice  at  the  time  of 
his  purchase,  but  he  may  also  transfer  his  rights  in  this  re- 
spect to  others,  and  the  fact  that  his  alienee  himself  has  notice 
is  immaterial,  it  being  thus  the  rule  that  a  purchaser  with 
notice  from  a  purchaser  without  notice  has  all  the  rights  of 
the  latter.'^  The  one  exception  to  this  rule  exists  when  tho 
second  purchaser  is  one  from  whom  the  purchaser  himself  de- 
rived his  title,  since  otherwise  one  purchasing  with  notice 
could  free  himself  from  the  effects  thereof  by  conveying  the 
land  to  an  innocent  purchaser,  and  then  taking  a  reconvey- 
ance.^"* 

§  485.     Purchasers  without  notice  from  purchasers  with  notice. 

A  purchaser  of  land  without  notice,  either  from  the  records 
or  otherwise,  of  a  prior  outstanding  claim,  is  not  affected 
thereby,  even  though  his  vendor  had  actual  notice  of  tho 
claim,  since  otherwise  no  person  could  purchase  land  witli 

72Roseman  v.  Miller,  84  111.  297;  Westbrook  v.  Gleason,  79  N.  Y. 
23;  Beck  v.  Uhrich,  13  Pa.  St.  636,  53  Am.  Dec.  507;  Marchbanks  v. 
Bauks,  44  Ark.  48;  Patten  v.  Moore,  32  N.  H.  382. 

73  Harrison  v.  Forth,  Finch,  Prec.  Ch.  51;  Whitfield  v.  Riddle.  78 
Ala.  99;  Roe  v.  Cato,  27  Ga.  637;  East  v.  Piigh,  71  Iowa.  162;  Bell  v. 
Twilight,  18  N.  H.  159,  45  Am.  Dec.  367. 

74  Clark  V.  McNeal,  114  N.  Y.  287,  11  Am.  St.  Rep.  638;  Johnson  v. 
Gibson,  116  111.  294;  Church  v.  Ruland,  64  Pa.  St.  432;  Ruling  v.  Ab- 
bott, 86  Cal.  423;  1  Story,  Eq.  Jur.  §  410. 

(1095) 


§   485  REAL  PROPERTY.  [Ch.  31 

any  safety,  and  the  purpose  of  the  recording  acts  would  be 
entirely  defeatedJ^ 

When  a  purchaser,  who  records  his  conveyance  before  the 
record  of  a  prior  conveyance,  nevertheless  takes  subject  there- 
to because  he  has  actual  notice,  one  who  purchases  from  him 
subsequent  to  the  recording  of  the  prior  conveyance  also 
takes  subject  thereto.  In  other  words,  the  last  purchaser 
cannot  claim  priority  by  reason  of  the  prior  record  of  the 
conveyance  to  his  grantor,  because  his  grantor's  actual  notice 
rendered  the  record  nugatory,  and  he  cannot  claim  priority 
by  reason  of  the  record  of  the  conveyance  to  himself,  be- 
cause such  record  was  subsequent  to  the  record  of  the  prior 
adverse  conveyance.'''^  Under  this  rule,  consequently,  though 
one  finds,  by  the  index  of  grantors  in  the  record  ofiice,  that 
a  particular  owner  in  the  chain  of  title  has  conveyed  the 
land,  a  continuance  of  the  search  under  the  name  of  such 
grantor  down  to  the  time  of  the  search  must  be  made  in  or- 
der to  ascertain  whether  there  is  another  conveyance  entitled 
to  priority.  Recognizing  that  this  is  a  hardship  upon  an 
intending  purchaser,  it  has  been  decided  in  at  least  one  state 
that,  under  such  a  state  of  facts,  the  innocent  purchaser  from 
a  purchaser  with  actual  knowledge  is  not  affected  by  a  con- 
veyance not  recorded  until  after  the  record  of  the  subsequent 
conveyance  to  the  latter.'''^ 

75  1  story,  Eq.  Jur.  §  409;  2  Pomeroy,  Eq.  Jur.  754;  Roe  v.  Cato,  27 
Ga.  637. 

70  Van  Rensselaer  v.  Clark,  17  Wend.  (N.  Y.)  25,  31  Am.  Dec.  280, 
€  Gray's  Gas.  479;  Mahoney  v.  Mlddleton,  41  Cal.  41;  Fallass  v. 
Pierce,  30  Wis.  443;  Erwin  v.  Lewis,  32  Wis.  276;  Woods  v.  Garnett, 
72  Miss.  78;  Van  Aken  v.  Gleason,  34  Mich.  477;  Bayles  v.  Young,  51 
111.  127,  6  Gray's  Gas.  482;  2  Pomeroy,  Eq.  Jur.  §  760. 

77  Morse  v.  Gurtis,  140  Mass.  112,  54  Am.  Rep.  456,  6  Gray's  Gas. 
483.  In  Day  v.  Glark,  25  Vt.  397,  this  result  is  attained  on  the  theory 
that,  as  a  subsequent  purchaser  with  notice  from  a  purchaser  with- 
out notice  takes  free  from  any  adverse  claim,  the  last  purchaser  is, 
in  this  case,  to  be  preferred,  because  he  does  not  know  that  his 
grantor  did  have  actual  notice  of  the  unrecorded  conveyance. 
(109G) 


Ch.   31]  PRIORITY   AND  RECORDING.  §   486 

§  486.     Purchasers  at  execution  sales. 

A  purchaser  at  a  sale  on  execution  stands  in  the  position 
of  any  other  purchaser  for  value,  and  takes  free  from  any 
claims  iipon  the  land  in  favor  of  third  persons,  of  which  he 
has  no  notice,  actual  or  constructive,  at  the  time  of  his  pur- 
chase.'^ ^  Moreover,  even  if  he  has  notice  of  rights  in  a  third 
person,  he  takes  the  land  unaffected  by  such  rights,  if  the 
rights  of  the  judgment  creditor  were  superior  thereto,  this 
being  an  application  of  the  principle  that  a  purchaser  with 
notice  from  a  purchaser  without  notice  is  not  affected  there- 
by.'^^  Consequently,  when,  as  may  be  the  case  in  a  number 
of  states,^''  the  lien  of  the  judgment  or  execution  is  superior 
to  an  equity  or  conveyance  which  is  prior  in  point  of  time, 
owing  to  the  want  of  notice  thereof  to  the  judgment  creditor, 
the  purchaser  under  the  execution,  even  though  having  notice, 
is  not  affected  by  such  equity  or  claim.^^  But  if  the  lien  of 
the  judgment  or  execution  is  subject  to  a  pre-existing  equity 
or  conveyance,  either  because  the  judgment  creditor  had  notice 
thereof,  or  because  such  is  the  law  of  the  state,^^  the  purchaser 
at  execution  sale,  if  he  has  notice  of  such  outstanding  rights 
in  a  third  person,  takes  subject  thereto.^^ 

TsMaupin  v.  Emmons,  47  Mo.  304,  6  Gray's  Cas.  458;  Dow  v.  Whit- 
ney, 147  Mass.  1.  6  Gray's  Cas.  434;  Meek  v.  Skeen,  8  C.  C.  A.  641, 
60  Fed.  322;  Garden  v.  Lane,  48  Ark.  216,  3  Am.  St.  Rep.  228;  Gor- 
man V.  Wood,  68  Ga.  524;  Gower  v.  Doheney,  33  Iowa,  36;  Lee  v. 
Bermingham,  30  Kan.  312;  McFadden  v.  Worthington,  45  111.  362; 
Boynton  v.  Winslow,  37  Pa.  St.  315;  Walker  v.  McKnight,  15  B.  Mon. 
(Ky.)  467;  Paine's  Lessee  v.  Mooreland,  15  Ohio,  435,  45  Am.  Dec. 
585. 

79  2  Pomeroy,  Eq.  Jur.  §  724. 

80  See  post,  §  507. 

81  Stevenson  v.  Texas  &  P.  Ry.  Co.,  105  U.  S.  703;  Motley  v.  Jones, 
98  Ala.  443;  Sharp  v.  Shea,  32  N.  J.  Eq.  65;  Blum  v.  Schwartz  (Tex.) 
20  S.  W.  54;  Butler  v.  Maury,  10  Humph.  (Tenn.)  420;  Doyle  v. 
Wade,  23  Fla.  90,  11  Am.  St.  Rep.  334. 

82  See  post,  ^  507. 

83  Meyer  v.  Hinman,  13  N.  Y.  180;  Churchill  v.  Morse,  23  Iowa,  229, 

(1097) 


§   487  REAL  PROPERTY.  [Ch.  3l 

§  487.     Lis  pendens. 

The  doctrine  of  lis  pendens,  by  which  one  purchasing  land 
from  a  party  to  a  pending  litigation  concerning  such  land 
takes  subject  to  the  results  of  such  litigation,  is  based,  not  on 
the  theory  that  such  purchaser  has  notice  of  the  adverse  claim, 
but  rather  on  the  principle  that,  pending  the  litigation,  a 
party  thereto  cannot  transfer  his  rights  in  the  land  to  others, 
so  as  to  prejudice  another  party  to  the  litigation,  since  other- 
wise the  decision  might  be  utterly  ineffectual.^"*  The  courts, 
however,  usually  refer  to  the  doctrine  as  constituting  a  branch 
of  the  law  of  notice,  a  pending  litigation  being  said  to  be  no- 
tice to  purchasers  from  parties  thereto,  and  this  is,  in  most 
all  cases,  the  result  of  the  doctrine.  Consequently  it  is  not 
improper  to  discuss  the  doctrine  in  connection  with  the  law 
of  notice. 

The  doctrine  of  Us  pendens  is  sometimes  spoken  of  as  be- 
ing peculiarly  applicable  to  equitable  proceedings,  on  the 
ground  that,  in  the  case  of  a  legal  action,  a  purchaser  pending 
the  litigation  can  take  only  the  title  of  his  vendor,  irrespec- 
tive of  notice ;  but  this  principle  in  regard  to  legal  actions 
seems  to  involve  but  another  statement  of  the  doctrine  of  lis 
pe7idens,  and  the  doctrine  is  regularly  applied  in  the  case  of 
proceedings  concerning  land  at  law,  as  w^ell  as  in  equity.^^ 

92  Am.  Dec.  422;  Rhodes  v.  Outcalt,  48  Mo.  367;  Shirk  v.  Thomas,  121 
Ind.  147,  16  Am.  St.  Rep.  381. 

84  2  Pomeroy,  Eq.  Jur.  §  632;  Bellamy  v.  Sabine,  1  De  Gex  &  J. 
566;  Newman  v.  Chapman,  2  Rand.  (Va.)  93,  6  Gray's  Cas.  464; 
Dovey's  Appeal,  97  Pa.  St.  153;  Arrington  v.  Arrington,  114  N.  C. 
151;  Watson  v.  Wilson,  2  Dana  (Ky.)  406,  26  Am.  Dec.  459;  Lamont 
V.  Cheshire,  65  N.  Y.  30;  Norris  v.  He,  152  111.  190,  43  Am.  St.  Rep. 
233;  Cheever  v.  Minton,  12  Colo.  557,  13  Am.  St.  Rep.  258. 

85  See  2  Pomeroy,  Eq.  Jur.  §  633 ;  Metcalfe  v.  Pulvertoft,  2  Ves.  & 
B.  200;  Mcllwrath  v.  Hollander,  73  Mo.  105,  39  Am.  Rep.  484;  La- 
mont V.  Cheshire,  65  N.  Y.  30;  Smith  v.  Hodsdon,  78  Me.  180;  Rollins 
V.  Henry,  78  N.  C.  342;  Cheever  v.  Minton,  12  Colo.  557,  13  Am.  St. 
Rep.  258;  Norris  v.  He,  152  111.  190,  43  Am.  St.  Rep.  233;  Houston  v. 

(1098) 


Ch.  31]  PRIORITY  AND  RECORDING.  J,  487 

Applications  of  the  doctrine  accordingly  occur  in  connection 
with  actions  of  ejectment,^'^  as  well  as  in  connection  with 
equitable  proceedings,  such  as  suits  to  foreclose  a  mortgage  or 
enforce  any  other  lien,^^  to  establish  a  trust  in  land,^*  or  t(^ 
set  aside  a  conveyance.^^ 

A  purchaser  is  affected  with  notice  only  if  the  land  is  de- 
scribed with  reasonable  certainty  in  the  pleadings  in  the  liti- 
gation.^^ A  purchaser  from  a  person  who  is  not  a  party  to 
pending  litigation  concerning  the  land  is  not  affected  with 
notice  thereof.^^ 

By  statute  in  many  of  the  states  the  original  doctrine  of 
lis  pendens  has  been  modified  by  statutory  provisions  requir- 
ing a  notice  of  Us  pendens  to  be  registered  or  recorded  in 
some  particular  mode,  in  order  that  a  purchaser  for  value 

Timmerman,  17  Or.  499,  11  Am.  St.  Rep.  848;  Tilton  v.  Cofield,  93 
U.  S.  163. 

86Walden  v.  Bodley's  Heirs,  9  How.  (U.  S.)  34;  Wetherbee  v. 
Dunn,  36  Cal.  147,  95  Am.  Dec.  166;  Smith  v.  Hodsdon,  78  Me.  180; 
Snively  v.  Hitechew,  59  Pa.  St.  49;  Rollins  v.  Henry,  78  N.  C.  342; 
Elizabethport  Cordage  Co.  v.  Whitlock,  37  Fla.  190. 

87  Dodd  V.  Lee,  57  Mo.  App.  167;  Owen  v.  Kilpatrick,  96  Ala.  421; 
Burleson  v.  McDermott,  57  Ark.  229;  Norris  v.  He,  152  111.  190,  4a 
Am.  St.  Rep.  233;  Rosenheim  v.  Hartsock,  90  Mo.  357;  O'Brien  v. 
Putney,  55  Iowa,  292. 

88  Walker  v.  Elledge,  65  Ala.  51;  Pratt  v.  Hoag,  5  Duer  (N.  Y.)  631. 
80  Mellen  v.  Moline  Malleable  Iron  Works,  131  U.  S.  352;  Jackson 

V.  Andrews,  7  Wend.  (N.  Y.)  152,  22  Am.  Dec.  574,  6  Gray's  Gas.  473; 
Evans  v.  Welch,  63  Ala.  250;  Leuders  v.  Thomas,  35  Fla.  518,  48  Am. 
St.  Rep.  255;  Watson  v.  Wilson,  2  Dana  (Ky.)  406,  26  Am.  Dec.  459. 

90  Miller  v.  Sherry,  2  Wall.  (U.  S.)  237;  Low  v.  Pratt,  53  111.  438; 
Todd  V.  Outlaw,  79  N.  C.  235;  Lewis  v.  Mew,  1  Strob.  Eq.  (S.  C.)  180; 
Griffith  V.  Griffith,  9  Paige  (N.  Y.)   317. 

91  Miller  v.  Sherry,  2  Wall.  (U.  S.)  237;  Green  v.  Rick,  121  Pa.  St. 
130,  6  Am.  St.  Rep.  760;  Allen  v.  Morris,  34  N.  J.  Law,  159;  Herring- 
ton  V.  Herrington,  27  Mo.  560;  Parks  v.  Jackson,  11  Wend.  (N.  Y.) 
442,  25  Am.  Dec.  656;  Scarlett  v.  Gorham,  28  Hi.  319;  Parsons  v. 
Hoyt,  24  Iowa,  154;  Travis  v.  Topeka  Supply  Co.,  42  Kan.  625. 

(1099) 


§  487  REAL  PROPERTY.  [Ch.  31 

and  without  actual  notice  may  be  charged  with  notice  of  the 
litigation.^^ 

There  is  a  conflict  in  the  decisions  as  to  whether  a  suit  to  en- 
force a  conveyance  or  incumbrance,  such  as  a  mortgage  which 
has  not  been  recorded,  is  sufficient  to  make  a  purchaser  pend- 
ing the  litigation  a  purchaser  with  notice,  so  as  to  render  the 
unrecorded  instrument  effective  as  against  him.^^ 

92  2  Pomeroy,  Eq.  Jur.  §  640.  See  Smith  v.  Gale,  144  U.  S.  509; 
Bensley  v.  Mountain  Lake  Water  Co.,  13  Cal.  306,  73  Am.  Dec.  575; 
Jorgenson  v.  Minneapolis  &  St.  L.  Ry.  Co.,  25  Minn.  206;  Sheridan 
V.  Andrews,  49  N.  Y.  478;  Todd  v.  Outlaw,  79  N.  C.  235;  Alterauge  v. 
Christiansen,  48  Mich.  60. 

93  That  it  does  have  such  effect,  see  Boiling  v.  Carter,  9  Ala.  921, 
€  Gray's  Cas.  477;  Thorns  v.  Southard,  2  Dana  (Ky.)  475.  That  it 
does  not,  see  Newman  v.  Chapman,  2  Rand.  (Va.)  93,  14  Am.  Dec. 
766,  6  Gray's  Cas.  464;  Douglass  v.  McCrackin,  52  Ga.  596.  See,  also, 
McCutchen  v.  Miller,  31  Miss.  65,  85. 

(1100) 


CHAPTER  XXXII. 

REGISTRATION   OF  TITLE. 

§  488.  The  purpose  of  the  legislation. 

489.  The  method  of  registration. 

490.  Transfers  after  registration. 

491.  Equitable  interests. 

492.  Liens. 

493.  Transfer  of  decedent's  land. 

In  some  states  there  exist  statutory  provisions  for  the  regis- 
tration of  title  to  land,  the  effect  of  which  is  to  make  a  cer- 
tificate of  title,  issued  by  an  official  named  in  the  statute,  con- 
clusive as  to  the  character  of  the  title  of  the  person  to  whom  it 
is  issued,  and  as  to  the  rights  of  other  persons  in  connection 
with  such  title. 

§  488.    The  purpose  of  the  legislation. 

The  system  of  registration  of  titles,  frequently  called  the 
"Torrens  System,"^  has  for  its  purpose  the  establishment  of 
a  system  by  which  the  title  to  a  particular  piece  of  land  will 
be  always  ascertainable  by  reference  to  a  certificate  issued 
by  a  government  ofiicial,  made  by  law  conclusive  in  this  re- 
gard. Such  a  certificate  is  first  issued  after  a  judicial  pro- 
ceeding in  the  nature  of  a  suit  to  quiet  title,  and  all  subse- 
quent transfers  or  transactions  affecting  the  title  are  either 
noted  on  this  certificate,  or  on  a  new  certificate  substituted 
therefor.     The  advantages  claimed  for  this  system  over  that 

1  After  Sir  Robert  Torrens,  of  South  Australia,  who  first  intro- 
duced it  into  use  among  English  speaking  people.  A  similar  system 
had  been  in  vogue  in  some  parts  of  the  present  German  empire  for 
many  years. 

(1101) 


§   489  REAL  PROPERTY.  [Ch.    32 

now  in  vogue  in  this  country,  by  which  a  purchaser  is  de- 
pendent chiefly  on  the  record  of  conveyances  for  knowledge 
of  the  state  of  his  vendor's  title,  are  many.  Chief  among 
them  are  the  saving  to  the  community  of  the  cost  of  a  new  ex- 
amination of  the  title  in  connection  with  each  transfer  or 
other  transaction  affecting  the  land,  the  removal  of  all  uncer- 
tainties as  to  the  title,  which  can  be  accomplished  only  par- 
tially by  the  present  system  of  examining  the  records,  and 
the  greater  speed  with  which  transfers  can  be  effected,  after 
the  title  has  once  been  made  the  subject  of  judicial  proceed- 
ings for  its  establishment.  The  details  of  the  legislation 
providing  for  the  introduction  of  this  system  differ  greatly 
in  different  countries,  and,  so  far  as  introduced  in  this  coun- 
try, in  different  states,  and  a  mere  outline  of  the  methods  of 
procedure  thereunder  can  here  be  given.^ 

§  489.     The  method  of  registration. 

In  order  that  land  may  be  registered  imder  the  statute,  and 
the  initial  certificate  of  title  obtained,  the  following  mode  of 
procedure  is  usually  prescribed:  The  person  or  persons 
claiming  the  ownership  of  the  land  in  fee  simple  file  an  ap- 
plication, addressed  to  the  court  having  jurisdiction  under 
the  statute,  describing  the  land,  setting  forth  any  estates,  in- 
terests, or  liens  outstanding  in  other  persons,  so  far  as  known 
to  the  petitioner,  the  name  of  the  occupant,  and  the  names  of 
owners  of  adjoining  land.  Ui3on  the  filing  of  the  application 
it  is  referred  to  one  or  more  official  examiners  of  title,  who, 
after  making  a  proper  examination,  report  to  the  court. 
Any  persons  who  appear  to  be  interested  in  the  land  are 
made  parties,  and  the  statute  provides  for  the  sending  of  no- 

2  There  is  a  great  deal  of  literature  on  the  subject,  to  a  great  ex- 
tent in  the  form  of  articles  in  legal  periodicals.  Lists  of  such  arti- 
cles may  be  found  in  Morris,  Land  Registration  (English),  and 
Land  Title  Registration,  by  Theodore  Sheldon,  Esq.   (American). 

(1102) 


Ch.    32]  REGISTRATION  OF  TITLE.  ^   489 

tices  to  such  persons,  and  also  for  the  publication  of  a  notice 
in  a  newspaper  for  a  prescribed  period.  If  the  examiner 
approves  the  title,  and  no  adverse  claims  are  presented,  or  if 
those  presented  do  not  appear  meritorious,  the  court  confirms 
the  applicant's  title,  and  directs  the  person  having  charge  of 
the  registration  office,  known  usually  as  the  registrar,  to  issue 
to  the  applicant  a  certificate  of  title.  This  certificate  states 
that  the  applicant  has  a  fee-simple  title  (or  otherwise,  as 
the  case  may  be),  and  also  there  are  noted  on  the  certificate 
anv  outstanding  interests,  trusts,  or  incumbrances  in  other 
persons  which  are  recognized  by  the  decree  of  the  court.  This 
certificate  is  made  out  in  duplicate;  one  copy  being  issued 
to  the  applicant  and  one  copy  being  retained  in  the  registra- 
tion office,  where  it  is  inserted  in  a  book  called  the  '^register" 
or  "registration  book." 

!No  person  other  than  the  owner  in  fee  simple  can,  under 
the  acts  adopted  in  this  country,  obtain  the  registration  of 
the  title,  but  the  existence  of  lesser  estates  in  other  persons 
does  not  affect  such  owner's  right  to  registration,  the  rights 
of  the  owners  of  lesser  estates  being  protected  by  statements 
upon  the  certificate  issued  to  the  owner  in  fee  simple. 

The  proceeding  by  which  the  title  is  registered  is,  by  the 
terms  of  the  statute,  absolutely  conclusive  upon  all  persons, 
-either  immediately  upon  the  rendition  of  the  decree,  or  within 
a  short  period  thereafter.  The  proceeding  is  thus  in  effect 
one  to  quiet  title.  The  constitutionality  of  such  legislation, 
in  so  far  as  it  makes  the  decree  binding  upon  persons  inter- 
-ested  in  the  land,  who  receive  notice  of  the  proceeding  merely 
"by  publication,  has  been  vigorously  questioned,  on  the 
ground  that  it  deprives  such  persons  of  property  without  due 
process  of  law ;  but  it  has  been  upheld  in  at  least  three  states.^ 

3  Tyler  v.  Judges  of  Court  of  Registration,  175  Mass.  71;  People  v. 
•Simon,  176  111.  165,  68  Am.  St.  Rep.  175;  State  v.  Westfall  (Minn.)  89 
3Sr.  W.  175.     See  note  to  latter  case  in  54  Cent.  Law  J.  293. 

(1103) 


§  490  REAL  PROPERTY,  [Ch.    32 

The  United  States  supreme  court  has  refused  to  assume  juris- 
diction to  determine  the  question  until  a  case  is  presented  by 
one  who  has  actually  been  deprived  of  property  by  means  of 
such  legislation.^ 

The  certificate  issued  upon  the  registration  of  the  title  is 
conclusive  that  no  outstanding  interests  and  incumbrances 
exist  in  other  persons,  with  certain  exceptions,  specified  in  the 
statute,  these  exceptions  ordinarily  including  liens  for  taxes, 
leases  for  terms  of  but  a  few  years,  highways,  and  easements, 
or  particular  classes  of  easements,  and,  as  to  all  such  excepted 
interests,  any  purchaser  of  the  land  must  satisfy  himself 
otherwise  than  by  reference  to  the  certificate  of  title. 

Eights  of  ownership  in  the  land  less  than  fee  simple,  as  well 
as  rights  in  the  land  existing  in  others,  such  as  easements  and 
profits  a  prendre,  are  not  usually  the  subject  of  a  separate 
certificate,  but  they  are  protected  by  memoranda  upon  the 
certificate  of  the  fee-simple  owner. 

I  490.    Transfers  after  registration. 

After  the  title  to  particular  land  has  been  registered,  all 
subsequent  transactions  affecting  such  title  must  be  by  means 
of  the  machinery  furnished  by  the  act.  If  the  owner  of  the 
fee-simple  title,  as  registered,  desires  to  make  a  transfer 
thereof,  he  makes  the  usual  conveyance,  and  hands  it,  to- 
gether with  his  certificate  of  title,  to  the  intending  purchaser, 
who  delivers  them  to  the  registrar,  who  then  cancels  the 
former  certificate,  and  makes  out  a  new  one  in  favor  of  the 
purchaser.  The  latter  is  protected,  as  against  any  adverse 
claims  unknown  to  him,  by  his  ability  to  inspect  the  original 
certificate  before  paying  over  the  price,  and  on  this  he  can  ab- 
solutely rely,  except  with  reference  to  the  classes  of  rights 
excepted  in  the  statute.     The  delivery  of  the  conveyance  to 

*  Tyler  v.  Judges  of  Court  of  Registration,  179  U.  S.  405. 
(1104) 


Ch.   32]  REGISTRATION  OF  TITLE.  §   492 

the  grantee  therein  is  not  regarded  as  effecting  a  transfer  of 
title,  but  tlie  transfer  takes  place  only  upon  the  issuance  of 
the  new  certificate.  In  case  the  fee-simple  owner  desires  to 
transfer  only  a  part  of  the  land,  his  former  certificate  is  can- 
celed, and  a  new  certificate  is  issued  to  him  for  the  part  re- 
tained, and  audtlier  is  issued  to  the  purchaser  for  his  part. 

§  491.     Equitable  interests. 

The  registration  is  of  the  legal  title  only,  and,  in  case  an 
equitable  interest  has  been  created  in  another  by  a  declara- 
tion of  trust  or  otherwise,  a  memorandum  to  that  effect  is 
made  upon  the  certificate,  without  stating  the  terms  of  the 
instrument  creating  the  same,  but  referring  to  the  place  of 
record  of  such  instrument.  The  statute  usually  provides  that 
no  instrument  undertaking  to  deal  with  land  held  in  trust 
shall  be  registered  until  it  has  been  approved  by  a  court,  or, 
in  one  state  at  least,  by  ofiicial  examiners  of  title,  as  being 
in  accordance  witb  the  terms  of  the  trust,  it  being  provided 
that  such  approval  shall  be  conclusive  as  to  the  validity  of  the 
transfer.^ 

§  492.     Liens. 

Though,  the  subject  of  liens,  including  mortgages,  is  treat- 
ed in  a  subsequent  part  of  this  work,  it  seems  desirable  to 
here  consider  the  effect  of  the  registration  of  the  title  to  land 
upon  such  liens  as  may  be  created  thereon. 

5  The  Illinois  act  (Laws  1897,  p.  156,  §  69),  making  the  approval 
of  such  transfer  by  two  examiners  conclusive  as  to  its  validity,  has 
been  criticised  as  conferring  judicial  powers  upon  ministerial  of- 
ficers. It  has,  however,  been  sustained  by  the  supreme  court.  Peo- 
ple V.  Simon,  176  111.  165,  68  Am.  St.  Rep.  175.  In  Massachusetts 
this  diflBculty  is  avoided  by  the  establishment  of  a  court  of  land  reg- 
istration, which  renders  a  decree  construing  the  trust  in  such  a 
case,  and  performs  any  other  acts  of  a  judicial  nature  which  may 
be  called  for  in  the  administration  of  the  law. 

(1105) 
Real  Prop.— 70. 


§   493  REAL  PROPERTY.  [Ch.    32 

All  existing  liens,  equitable  or  statutory,  except  those  ex- 
cepted in  the  statute,  are  noted  upon  the  certificate  of  title 
when  issued  upon  the  registration  of  the  land,  and  those  sub- 
sequently created  on  the  land  are  also  required  to  be  noted  on 
the  certificate,  generally  upon  the  filing  with  the  registrar  of 
a  copy  of  the  proceedings  or  instrument  upon  which  the  lien 
is  based. 

In  the  case  of  a  mortgage  on  the  land,  made  subsequent  to 
the  registration  of  the  title,  the  statute  sometimes  provides 
for  the  issue  of  a  duplicate  certificate  of  title  to  the  mort- 
gagee, a  memorandum  of  such  issue  being  noted  on  the  original 
certificate  in  the  registration  book,  while  sometimes  the  mort- 
gage merely  is  given  to  the  mortgagee,  a  duplicate  being  held 
by  the  registrar,  and  the  transaction  being,  as  in  the  other 
case,  noted  in  the  registration  book.  Upon  an  assignment  or 
discharge  of  the  mortgage,  these  facts  are  noted  upon  the  cer- 
tificate in  the  registration  book. 

?  493.     Transfer  of  decedent's  land. 

The  acts  providing  for  the  registration  of  title  differ  in 
their  provisions  for  the  transfer  upon  the  register  of  lands 
belonging  to  a  decedent.  By  some  statutes  it  is  provided 
that  the  title  to  all  registered  land  shall,  on  the  death  of  the 
owner,  pass  to  the  executor  or  administrator,  or  to  a  trustee 
to  be  selected,,  and  that  he,  under  an  order  of  court,  shall 
transfer  the  title  upon  the  register  to  the  heirs  or  devisees  as 
named  in  the  order,  or  to  the  purchaser,  in  case  the  land  is 
sold  for  purposes  of  administration.  Other  statutes  provide 
that  the  heirs  or  devisees  shall  make  application  for  the  entry 
of  a  new  certificate  in  their  favor,  and,  after  notice  to  all  per- 
sons in  interest  by  publication  and  otherwise,  and  after  due 
hearing,  such  a  certificate  is  issued,  subject,  however,  to  all 
claims  against  deceased  until  final  settlement  of  the  estate, 
and  a  transfer  of  the  land  to  another. 
(1106) 


CHAPTER  XXXin. 

RESTRICTIONS  UPON  THE  FREEDOM  OF  TRANSFER. 

§  494.  General  considerations. 

495.  Conveyances  in  fraud  of  creditors. 

496.  Conveyances  in  fraud  of  subsequent  purchasers. 

497.  Conveyances  in  violation  of  the  bankrupt  act. 

498.  Transfers  by  disseisees. 

499.  The  homestead  exemption. 

500.  Restrictions  in  creation  of  estate. 

The  right  of  one  having  an  estate  or  interest  in  land  to 
transfer  it  to  another  is  subject  to  restrictions  as  follows: 

The  transfer  must  not  be  in  fraud  of  creditors,  as  being  in- 
tended to  deprive  them  of  the  means  of  realizing  their  claims 
from  the  debtor's  property. 

The  transfer  must  not  be  in  fraud  of  a  subsequent  purchaser, 
as  being  intended  as  a  device  for  rendering  the  sale  to  such  pur- 
chaser nugatory. 

Under  the  United  States  bankruptcy  act,  a  transfer  by  one 
within  a  certain  time  before  he  is  adjudged  a  bankrupt,  with 
the  purpose  of  giving  a  preference  to  a  particular  creditor,  is 
voidable,  as  is  a  general  assignment  of  all  his  property  for  the 
benefit  of  creditors. 

In  some  states,  one  cannot  transfer  land  which  is  in  the  ad- 
verse possession  of  another. 

In  many  states,  the  interest  of  a  debtor  in  the  "homestead" 
occupied  by  his  family  is,  to  a  certain  extent,  measured  either 
by  the  quantity  or  value  of  the  land,  exempt  from  liability  to 
involuntary  transfer  under  execution,  or  otherwise,  in  satis- 
faction of  his  debts,  other  than  those  of  particular  excepted 
classes.  In  some  states  the  statute  extends  the  benefit  of  the 
exemption  to  persons  having  no  family. 

(1107) 


§   494  REAL  PROPERTY.  [Ch.  33 

One  cannot,  in  creating  a  legal  estate  in  fee,  restrict  the 
rights  of  the  tenant  as  regards  voluntary  alienation,  or  the 
rights  of  the  latter's  creditors  to  proceed  against  the  land;  nor 
can  one  so  do  in  creating  a  legal  life  estate  or  an  estate  for 
years,  except  by  a  provision  that  the  estate  shall  terminate 
upon  such  voluntary  or  involuntary  alienation.  Furthermore, 
one  cannot,  in  assigning  an  estate  for  years,  impose  such  a  re- 
striction upon  his  assignee.  In  connection  with  equitable,  as 
distinct  from  legal,  estates  for  life,  in  many  states,  and  appar- 
ently, in  a  few,  in  connection  with  equitable  estates  in  fee 
simple,  a  restriction  may  be  imposed,  in  the  creation  of  the 
estate,  upon  the  rights  of  the  beneficiary  to  transfer  his  inter- 
est, and  upon  the  rights  of  his  creditors  to  collect  their  claims 
therefrom,  such  express  restrictions  creating  what  are  fre- 
quently termed  "spendthrift  trusts." 

§  494.     General  considerations. 

As  a  general  rule,  the  owner  of  any  particular  estate  in 
land  has  full  power  to  make  any  disposition  thereof,  trans- 
ferring either  all  his  rights  in  the  land  or  a  part  only,  and 
creating  at  his  pleasure,  in  favor  of  different  persons,  such 
estates  as  are  recognized  by  the  law.  There  are,  however, 
certain  restrictions  imposed  by  law  upon  the  right  of  trans- 
fer. One  class  of  such  restrictions — those  growing  out  of 
the  legal  incapacity  of  certain  classes  of  persons  to  transfer 
any  interests  in  land,  or,  in  some  cases,  to  acquire  them — - 
will  be  considered  in  the  next  chapter.  Of  the  other  restric- 
tions upon  the  right  of  the  owner  of  land  to  transfer  his 
land  when  and  as  he  chooses,  those  imposed  by  the  rule 
against  perpetuities,^  by  the  prohibition  of  invalid  condi- 
tions,^ by  the  law  as  to  charitable  trusts,^  and  for  the  pur- 

1  Ante,  §§  152-160. 

2  Ante,  §  70. 

3  Ante,  §  102. 

(1108) 


Ch.   33]  RESTRICTIONS  ON  TRANSFER.  §   4«J5 

pose   of   protecting   inaritiil   rights'*    have   been   before   dis- 
cussed. 

There  remain  to  be  considered  the  restrictions  arising 
from  the  prohibition  of  conveyances  in  fraud  of  creditors,' 
the  prohibition  of  conveyances  in  fraud  of  subsequent  pur- 
chasers,® those  imposed  by  the  bankrupt  act,'^  those  exist- 
ing, in  a  few  states,  as  a  result  of  a  statutory  prohibition 
of  the  conveyance  of  land  in  the  adverse  possession  of  an- 
other.^ The  restrictions  previously  eniunerated  are  imposed 
solely  upon  the  voluntary  transfer  of  interests  in  land  by 
the  person  entitled  thereto.  There  also  exist,  in  many  of 
the  states,  statutes  of  great  importance,  exempting  from 
forced  sale  in  behalf  of  a  creditor  the  "homestead"  or  res- 
idence of  the  debtor,  and  these  statutes  also  usually  prohibit 
a  conveyance  of  such  homestead  without  the  assent  of  the 
owner's  wife,  they  thus  effecting  a  restriction  upon  both  the 
voluntary  and  involuntary  transfer  of  his  title."  Frequent- 
ly, although  the  law  imposes  no  restriction  upon  the  right 
of  the  owner  of  land  to  dispose  thereof,  or  of  his  creditors 
to  enforce  payment  therefrom,  the  instrument  by  which  he 
is  given  title  to  the  land  undertakes  to  restrict  his  rights, 
or  those  of  his  creditors,  in  this  regard.^ ^ 

§  495.     Conveyances  in  fraud  of  creditors. 

By  St.  13  Eliz.  c.  5,"  it  was  provided  "that  all  and  ev- 
ery feoffment,  gift,  grant,  alienation,  bargain,  and  convey- 
ance of  lands,  tenements,  hereditaments,  goods  and  chattels, 

4  Ante,  §§  189,  209. 

5  Post,  §  495. 

6  Post,  §  496. 

7  Post,  §  497. 

8  Post,  §  498. 

9  Post,  §  499. 

10  Post,  §  500. 
"  A.  D.  1570. 

(1109) 


§   495  REAL  PROPERTY.  [Ch.  33 

*  *  *  and  all  and  every  bond,  suit,  judgment,  and  exe- 
cution," made  to  hinder,  delay,  or  defraud  creditors  or  oth- 
ers "of  their  just  and  lawful  actions,  suits,  debts,  accounts, 
damages,"  etc.,  should  be  deemed,  as  against  that  person  or 
persons,  his  heirs  and  successors,  whose  actions,  suits,  etc., 
are  or  might  be  in  any  wise  disturbed,  hindered,  delayed,  or 
defrauded,  utterly  void.  This  statute  has  been  frequently 
asserted  to  be  merely  declaratory  of  the  common  law,  and 
probably  at  the  present  day,  even  in  the  absence  of  any 
statute,  the  rights  of  creditors  would  be  protected  at  law  or 
in  equity  as  against  such  a  fraudulent  attempt  by  the  debtor 
to  avoid  paying  his  debts.^^  In  most  of  the  states,  however, 
there  is  an  express  statute  essentially  similar  to  the  English 
statute. ^^  In  at  least  two  states  the  statute  has  been  adopted 
as  part  of  the  common  law  of  the  state.-^^ 

The  statutes  directed  against  fraudulent  conveyances  do 
not  prohibit  the  preference  by  a  debtor  in  failing  circum- 
stances of  one  or  more  of  his  creditors,  provided  the  prop- 
erty conveyed  for  the  purpose  of  effecting  such  preference 
does  not  exceed  the  bona  fide  amount  of  the  debt  or  debts, 
and  no  benefit  is  reserved  to  the  grantor.^  ^  It  is  only  by 
means  of  an  express  prohibition  of  such  preferences,  such  as 
is  found  in  the  bankrupt  act,  that  they  can  be  regarded  as  in- 
valid. 

The  creditors  protected  by  the  terms  of  the  statutes  above 
referred  to  include  not  only  those  who  are  such  at  the  time 

12  2  Bigelow,  Fraud,  c.  2. 

13  1  Stimson's  Am,  St.  Law,  §  4591. 

14  Robinson  v.  Holt,  39  N.  H.  557,  75  Am.  Dec.  233;  Howe  v.  Ward, 
4  Me.  195. 

15  2  Bigelow,  Fraud,  491;  Huntley  v.  Kingman,  152  U.  S.  527;  South- 
ern White  Lead  Co.  v.  Haas,  73  Iowa,  399;  Banfield  v.  Whipple,  14 
Allen  (Mass.)  13;  Wilt  v.  Franklin,  1  Binn.  (Pa.)  502,  2  Am.  Dec. 
474;  Skipwith's  Ex'r  v.  Cunningham,  8  Leigh  (Va.)  271,  31  Am.  Dec. 
642. 

(1110) 


Ch.  33]  RESTRICTIONS  ON  TRANSFER.  §   495 

of  the  conveyance  alleged  to  be  fraudulent,  but  also  those 
persons  who  may  thereafter  become  creditors.  So,  in  case 
one  makes  a  conveyance  of  property  with  the  present  inten- 
tion of  entering  into  a  hazardous  business,  or  of  creating 
debts,  with  the  knowledge  that  the  conveyance  will  probably 
affect  his  ability  to  pay  his  debts,  the  conveyance  will  be  void 
as  against  the  persons  with  whom  such  debts  were  con- 
tracted.^^ 

If  a  conveyance  is  made  with  the  intention  of  defrauding 
creditors,  the  fact  that  it  is  based  on  a  valuable  consideration 
will  not  render  it  valid  as  against  tliem.^' 

A  voluntary  conveyance — that  is,  one  not  supported  by  a 
valuable  consideration — is,  in  some  states,  void  as  against 
existing  creditors,  on  a  conclusive  presumption  of  fraud  on 
the  part  of  the  grantor.^ ^  But  in  most  jurisdictions,  though  a 
voluntary  conveyance  is  presumptively  fraudulent  as  against 
existing  creditors,  it  is  upheld  if  it  can  be  shown  that,  at 
the  time  of  making  it,  the  grantor  retained  amply  sufficient 
property  to  satisfy  the  claims  of  his  creditors,  and  that  it. 
was  owing  only  to  the  happening  of  unforeseen  contingencies 

16  Winchester  v.  Charter,  12  Allen  (Mass.)  606,  6  Gray's  Cas. 
295;  Case  v.  Phelps,  39  N.  Y.  164,  6  Gray's  Cas.  299;  Redfleld  v. 
Buck,  35  Conn.  328,  95  Am.  Dec.  241;  Snyder  v.  Free,  114  Mo.  360; 
Monroe  v.  Smith,  79  Pa.  St.  459;  Churchill  v.  Wells,  7  Cold.  (Tenn.) 
364;  Rudy  v.  Austin,  56  Ark.  73,  35  Am.  St.  Rep.  85;  Moritz  v.  Hoff- 
man, 35  111.  553;  Mackay  v.  Douglas,  L.  R.  14  Eq.  106,  6  Gray's 
Cas.  223;  Ex  parte  Russell,  19  Ch.  Div.  588,  6  Gray's  Cas.  235. 

i7Twyne's  Case,  3  Coke,  80b,  6  Gray's  Cas.  196,  1  Smith,  Lead. 
Cas.  Eq.  1;  Gragg  v.  Martin,  12  Allen  (Mass.)  498;  Gable  v.  Colum- 
bus Cigar  Co.,  140  Ind.  563;  Haymaker's  Appeal,  53  Pa.  St.  306; 
Billings  V.  Russell,  101  N.  Y.  226;  May,  Fraud.  Conv.  (2d  Ed.)  85 
et  seq.;  Wait,  Fraud.  Conv.  §§  207,  208. 

isWooten  v.  Steele,  109  Ala.  563,  55  Am.  St.  Rep.  947;  Swartz  v. 
Hazlett,  8  Cal.  126;  Severs  v.  Dodson,  53  N.  J.  Eq.  633,  51  Am.  St. 
Rep.  641.     See  Marmon  v.  Harwood,  124  111.  104. 

(1111) 


§  495  REAL  PROPERTY.  [Ch.  33 

that  he  was  unable  to  pay  such  claimsJ"  In  a  number  of 
states  the  statute  provides,  in  accordance  with  this  view,  that 
a  conveyance  is  not  necessarily  void  because  voluntary.''^'^ 
The  fact  that  a  conveyance  is  voluntary  does  not  render  it 
open  to  attack  by  subsequent  creditors,  unless  it  was  made 
under  circumstances  showing  actual  fraud.^^ 

A  conveyance,  though  declared  by  the  statute  to  be  "void" 
as  against  creditors,  is  merely  voidable  by  them,  and,  as 
between  the  parties  thereto  and  their  successors  in  interest, 
and  as  against  other  persons  not  creditors,  it  is  perfectly 
valid.^^  A  conveyance  which  is  fraudulent  as  to  one  or  more 
creditors  is,  it  seems,  invalid  as  to  all;^^  and,  by  some  de- 
cisions, a  conveyance  fraudulent  as  to  existing  creditors  is 
regarded  as  voidable  at  the  instance  of  subsequent  cred- 
itors,^"* though,  in  some  states,  such  a  view  is  considered  to 

19  Pratt  V.  Curtis,  2  Lowell,  87,  Fed.  Cas.  No.  11,375,  6  Gray's  Cas. 
304;  Parish  v.  Murphree,  13  How.  (U.  S.)  92;  Driggs  &  Co.'s  Bank 
V.  Norwood,  50  Ark.  46,  7  Am.  St.  Rep.  78;  Clark  v.  Depew,  25  Pa. 
St.  509,  64  Am.  Dec.  717;  Cole  v.  Tyler,  65  N.  Y.  78;  Goodman  v. 
Wineland,  61  Md.  449;  Rudy  v.  Austin,  56  Ark.  73,  35  Am.  St.  Rep. 
85,  and  note;  Lowry  v.  Fisher,  2  Bush  (Ky.)  70,  92  Am.  Dec.  475. 

20  1  Stimson's  Am.  St.  Law,  §  4598. 

21  See  Todd  v.  Nelson,  109  N.  Y.  316,  6  Gray's  Cas.  307;  Pratt  v. 
Curtis,  2  Lowell,  87,  Fed.  Cas.  No.  11,375,  6  Gray's  Cas.  304;  Win- 
chester V.  Charter,  12  Allen  (Mass.)  606,  6  Gray's  Cas.  295;  Elyton 
Land  Co.  v.  Iron  City  Steam  Bottling  Works,  109  Ala.  602;  Hager- 
man  v.  Buchanan,  45  N.  J.  Eq.  292,  14  Am.  St.  Rep.  732,  and  note; 
Kane  v.  Desmond,  63  Cal.  464;  Moritz  v.  Hoffman,  35  111.  553;  Bul- 
litt V.  Taylor,  34  Miss.  708,  69  Am.  Dec.  412;  Thompson  v.  Allen, 
103  Pa.  St.  44,  49  Am.  Rep.  116. 

22  Anderson  v.  Roberts,  18  Johns.  (N.  Y.)  515,  9  Am.  Dec.  235,  6 
Gray's  Cas.  369;  Lawton  v.  Gordon,  34  Cal.  36,  91  Am.  Dec.  670; 
Knight  V.  Glasscock,  51  Ark.  390;  Stillings  v.  Turner,  153  Mass. 
534;  Burt  v.  Timmons,  29  W.  Va.  441,  6  Am.  St.  Rep.  664;  McElroy 
V.  Hiner,  133  111.  156. 

23  Barrett  v.  Nealon,  119  Pa.  St.  171,  4  Am.  St.  Rep.  628;  Person- 
ette  V.  Cronkhite,  140  Ind.  586;  Savage  v.  Knight,  92  N.  C.  493,  53 
Am.  Rep.  423. 

24McLane  v.  Johnson,  43  Vt.  48;  Bassett  v.  McKenna,  52  Conn. 
437;  Pratt  v.  Curtis,  2  Lowell,  87,  Fed.  Cas.  No.  11,375,  6  Gray's 
(1112) 


Ch.    33]  RESTRICTIONS  ON  TRANSFER.  {^   495 

be  applicable  only  under  particular  circumstances,  as  when 
there  is  a  secret  trust  for  the  grantor,  or  the  pre-existing  debts 
remain  unpaid,  or  the  subsequent  creditors  were,  at  the  time 
the  debts  were  contracted,  entirely  without  knowledge  of  the 
previous  conveyance.  ^^ 

Protection  of  bona  fide  purchasers. 


Although  a  convej-ance  is  otherwise  voidable  as  being  in 
fraud  of  creditors,  it  will  not  be  so  treated  in  case  the  grantee 
was  a  purchaser  for  value  without  notice  of  the  fraud.  The 
Statute  of  Elizabeth  and  most  of  the  state  statutes  contain 
an  exception  in  favor  of  such  a  purchaser;^®  but  even  in 
the  absence  of  any  statute,  the  exception  has  been  enforced, 
in  pursuance  of  the  usual  equitable  policy  of  protecting  bona 
fide  purchasers  for  value. -^ 

The  protection  accorded  to  a  bona  fide  purchaser  for  value 
is  also  extended  to  one  who  is,  not  the  grantee  in  the  fraud- 
ulent conveyance,  but  a  purchaser  from  the  grantee ;  and 
this,  although  the  conveyance  could  have  been  avoided  as 
against  the  original  grantee,  owing  to  his  knowledge  of  the 
fraud,  or  because  he  did  not  pay  a  valuable  consideration.-^ 

Gas.  304;  Walsh  v.  Byrnes,  39  Minn.  527;  Jordan  v.  Collins,  107  Ala. 
572;  Day  v.  Cooley,  118  Mass.  527;  Trezevant  v.  Terrell,  96  Tenn. 
528;  Lockhard  v.  Beckley,  10  W.  Va.  87;  2  Bigelow,  Fraud,  89  et  seq. 

25  See  Clark  v.  French,  23  Me.  221,  39  Am.  Dec.  618;  Wyman  v. 
Brown,  50  Me.  139;  Claflin  v.  Mess,  30  N.  J.  Eq.  211;  Springer  v. 
Bigford,  160  111.  495;  Simmons  v.  Ingram,  60  Miss.  886;  Monroe  v. 
Smith,  79  Pa.  St.  459;  Sheppard  v.  Thomas,  24  Kan.  780;  Hagerman 
V.  Buchanan,  45  N.  Y.  Eq.  292,  14  Am.  St.  Rep.  732,  and  note. 

26  1  Stimson's  Am.  St.  Law,  §  4598. 

27Gridley  v.  Bingham,  51  111.  153;  Farlin  v.  Sook,  30  Kan.  401,  46 
Am.  Rep.  100;  Leach  v.  Francis,  41  Vt.  670;  Jackson  v.  Glaze,  3  Okl. 
143;  Dougherty  v.  Cooper,  77  Mo.  528;  Tiernay  v.  Claflin.  15  R.  I. 
220;  Shauer  v.  Alterton,  151  U.  S.  607. 

28  Anderson  v.  Roberts,  18  Johns.  (N.  Y.)  515,  9  Am.  Dec.  235,  6 
Gray's  Cas.  369;  George  v.  Kimball,  24  Pick.  (Mass.)  234;  Thames 
V.  Rembert's  Adm'r,  63  Ala.  561;   Williamson  v.  Russell,  39  Conn. 

(1113) 


§   496  REAL  PROPERTY.  [Ch.    23 

§  496.     Conveyances  in  fraud  of  subsequent  purchasers. 

St.  27  Eliz.  c.  4,  made  perpetual  bj  St.  39  Eliz.  c.  18, 
provided  in  effect  that  all  alienations  of  land,  made  with 
intent  to  defraud  and  deceive  subsequent  purchasers  for  val- 
uable consideration,  should,  as  against  such  persons  and  per- 
sons claiming  under  them,  be  void,  unless  the  alienation  be 
made  for  good  consideration  and  bona  fide.  The  expression^ 
"good"  consideration,  as  used  in  the  statute,  has  always  been 
construed  as  meaning  "valuable"  consideration.^^ 

This  statute  is  frequently  stated  to  be  declaratory  of  the' 
common  law.^°  This  is  questionable,  however. ^^  In  many 
states  in  this  country  there  is  an  express  statutory  provision 
substantially  equivalent  to  the  English  statute,^^  while  oc- 
casionally such  statute  has  been  regarded  as  in  force  with- 
out any  express  provision  upon  the  subject.^^ 

In  England  the  statute  was  construed  as  invalidating  any 
conveyance  not  made  on  a  valuable  consideration,  as  against 
one  to  whom  the  grantor  subsequently  conveyed  the  land  on 
a  valuable  consideration,  even  though  the  subsequent  alienee 
had  notice  of  the  previous  conveyance,  the  execution  of  the- 
subsequent  conveyance  being  regarded  as  evidence  that  the 

406;  Scott  V.  Purcell,  7  Blackf.  (Ind.)  66,  39  Am.  Dec.  453;  Young- 
V.  Lathrop,  67  N.  C.  63,  12  Am.  Rep.  663;  Sawtelle  v.  Weymouth,  14 
Wash.  21. 

29  Twyne's  Case,  3  Coke,  80b,  6  Gray's  Cas.  196,  1  Smith,  Lead. 
Cas.  Eq.  1;  Dolphin  v.  Aylward,  L.  R.  4  H.  L.  486;  2  Bigelow,  Fraud,. 
532;  May,  Fraud.  Conv.  (2d  Ed.)  245. 

30  Cadogan  v.  Kennett,  Cowp.  434;  Hamilton  v.  Russel,  1  Cranch 
(U.  S.)  309;  Kimball  v.  Hutchins,  3  Conn.  450;  Fleming  v.  Town- 
send,  6  Ga.  103,  50  Am.  Dec.  318;  Howe  v.  Waysman,  12  Mo.  169,  49 
Am.  Dec.  126. 

311  Story,  Eq.  Jur.  §  352;  2  Bigelow,  Fraud,  25. 

32 1  Stimson's  Am.  St.  Law,  §  4592.  See  2  Bigelow,  Fraud,  517 
et  seq. 

33  Beal  V.  Warren,  2  Gray    (Mass.)    447,  6  Gray's  Cas.  321;    Lan- 
caster V.  Dolan,  1  Rawle  (Pa.)  231,  18  Am.  Dec.  625;   City  of  Balti- 
more V.  Williams,  6  Md.  235;  Gardner  v.  Cole,  21  Iowa,  205. 
(1114) 


Ch.    33]  RESTRICTIONS  ON  TRANSFER.  §  495 

first  conveyance  was  fraudulent.  The  effect  of  this  construc- 
tion was  that  a  conveyance  of  land  not  based  on  a  valuable 
consideration  could  always  be  revoked  by  the  grantor  by 
means  of  a  subsequent  conveyance  by  him  for  value,  unless  the 
first  grantee  had  conveyed  the  land  to  a  purchaser  for  value.'^'* 
This  construction  placed  upon  the  statute  was  finally  re- 
moved by  a  late  statute,^^'  providing  that  no  voluntary  cun- 
veyance  of  land,  if  bona  fide  and  free  from  fraudulent  in- 
tent, should  be  defeated  by  a  subsequent  purchase  for  value. 
In  this  country  the  construction  placed  upon  the  act  by  the 
English  courts  has  not  been  adopted,  and  consequently  the 
influence  of  the  statute  has  been  much  less  felt.  So  it  is 
usually  held  that,  if  the  subsequent  purchaser  has  notice  of 
a  previous  voluntary  conveyance,  he  cannot  claim  to  have 
been  defrauded  thereby,  provided  there  was  no  actual  fraud 
in  the  making  of  the  first  conveyance.^®  In  many  states  the 
statute  specifically  provides  that  the  prior  conveyance  shall 
not  be  void  as  against  a  subsequent  purchaser  with  actual 
or  legal  notice.^ ''^  Moreover,  the  notice,  to  thus  preclude 
the  subsequent  purchaser  from  claiming  the  protection  of 
the  statute,  need  not,  by  the  weight  of  authority,  be  actual, 
constructive  notice  from  the  recording  of  the  first  convey- 

3*  Doe  d.  Otiey  v.  Manning,  9  East,  59;  Doe  d.  Newman  v.  Rush- 
am,  17  Q.  B.  723,  6  Gray's  Cas.  314;  Dolphin  v.  Aylward,  L.  R.  4  H. 
L.  486.  See  May,  Fraud.  Conv.  (2d  Ed.)  189  et  seq.;  Mellick  v. 
Mellick,  47  N.  J.  Eq.  86.  But  the  heir  or  devisee  of  the  grantor 
could  not  revoke  the  voluntary  conveyance  by  making  a  conveyance 
for  value.  Doe  d.  Newman  v.  Rusham,  17  Q.  B.  723,  6  Gray's  Cas. 
314;  Lewis  v.  Rees,  3  Kay  &  J.  132. 

35  56  &  57  Vict.  c.  21   (A.  D.  1893). 

seVerplank  v.  Sterry,  12  Johns.  (N.  Y.)  536,  7  Am.  Dec.  348; 
Lancaster  v.  Dolan,  1  Rawle  (Pa.)  231,  18  Am.  Dec.  625;  Foster  v. 
Walton,  5  Watts  (Pa.)  378;  Chaffin  v.  Kimball's  Heirs,  23  111.  36; 
City  of  Baltimore  v.  Williams,  6  Md.  235;  Gilliland  v.  Fenn,  90  Ala. 
230;  Anderson  v.  Etter,  102  Ind.  115;  Laird  v.  Scott,  5  Heisk.  (Tenn.) 
314;  Gardner  v.  Cole,  21  Iowa,  212. 

37  1  Stimson's  Am.  St.  Law,  §  4592. 

(1115) 


I   496  REAL  PROPERTY.  [Ch.   33 

ance  being  sufficient/"^^  Apart  from  the  question  of  the  ef- 
fect of  notice  of  the  previous  conveyance,  the  making  of  the 
second  conveyance  is  not  usually  regarded  as  necessarily 
showing  a  fraudulent  intent  in  making  the  first  conveyance, 
so  as  to  bring  it  within  the  terms  of  the  statute,^^  though 
it  may  cast  upon  the  grantee  in  the  first  conveyance  the  bur- 
den of  showing  the  absence  of  such  an  intent.^*^  The  gen- 
eral result  of  the  decisions  in  this  country,  accordingly,  is 
that,  while  a  conveyance  intended  to  be  in  fraud  of  a  sub- 
sequent purchaser  is  invalid  as  against  him,  it  is  not  so,  even 
though  voluntary,  if  not  actually  fraudulent,  and  he  has  no- 
tice of  its  existence. 

Even  though  the  prior  conveyance  be  invalid  so  far  as 
concerns  the  grantee  therein,  it  cannot  be  set  aside  as  against 
a  purchaser  from  him  for  value  without  notice  of  the  fraud, 
nor,  when  the  fraud  is  based,  as  formerly  in  England,  on 
the  voluntary  character  of  the  conveyance,  although  he  knows 
of  its  voluntary  character.^^ 

The  Statute  of  27  Eliz.  c.  4,  also  contained  a  provision 
that  a  conveyance  containing  a  power  of  revocation  in  tbe 
grantor  should  be  invalid  as  against  a  subsequent  convey- 

38  Gardner  v.  Cole,  21  Iowa,  216;  City  of  Baltimore  v.  Williams,  6 
Md.  235;  Lancaster  v.  Dolan,  1  Rawle  (Pa.)  231,  18  Am.  Dec.  625; 
Laird  v.  Scott,  5  Heisk.  (Tenn.)  314.  Contra,  Fleming  v.  Town- 
send,  6  Ga.  103,  50  Am.  Dec.  318.  And  see  Sterry  v.  Arden,  1  Johns. 
Ch.  (N.  Y.)  261;  Mellick  v.  Mellick,  47  N.  J.  Eq.  86. 

soBeal  V.  Warren,  2  Gray  (Mass.)  447,  6  Gray's  Cas.  321;  Cathcart 
V.  Robinson,  5  Pet.  (U.  S.)  280;  Jackson  v.  Town.  4  Cow.  (N.  Y.) 
603;  City  of  Baltimore  v.  Williams,  6  Md.  235;  Shaw  v.  Tracy,  83 
Mo.  224;  4  Kent's  Comm.  463,  note. 

40  City  of  Baltimore  v.  Williams,  6  Md.  235;  Gardner  v.  Cole,  21 
Iowa,  212;  Gilliland  v.  Fenn,  90  Ala.  230;  Cathcart  v.  Robinson,  5 
Pet.  (U.  S.)  264;  1  Story,  Eq.  Jur.  §  427;  2  Pomeroy,  Eq.  Jur.  §  974. 

41  Prodgers  v.  Langham,  1  Sid.  133,  6  Gray's  Cas.  328;  Doe  d. 
Newman  v.  Rusham,  17  Q.  B.  723,  6  Gray's  Cas.  314;  Gilliland  v. 
Fenn,  90  Ala.  230;  Fletcher  v.  Peck,  6  Cranch  (U.  S.)  133;  Reynolds 
V.  Vilas,  8  Wis.  471,  76  Am.  Dec.  238. 

(1116) 


Ch.   33]  RESTRICTIONS  ON  TRANSFER.  §  497 

ance  by  tlie  same  grantor  to  a  purcliaser  for  a  valuable  or 
good  consideration.  This  provision,  or  its  substantial  equiv- 
alent, has  been  adopted  in  many  states  ;"*^  but  occasion  for  the 
application  of  such  statutes  has,  in  England,  but  seldom, 
arisen,  and,  in  this  country,  practically  never. 

§  497.     Conveyances  in  violation  of  the  bankrupt  act. 

The  present  bankrupt  acf*^  provides  that,  if  one  adjudged 
a  bankrupt  shall,  Avithin  four  months  before  the  filing  of 
the  petition  to  have  him  so  adjudged,  or  after  the  filing  of 
the  petition,  and  before  the  adjudication,  have  given  a  pref- 
erence to  any  creditor,  such  preference  shall  be  voidable  by 
the  trustee,  provided  the  person  receiving  the  preference,  or 
to  be  benefited  thereby,  or  his  agent,  shall  have  had  reason- 
able cause  to  believe  that  it  was  intended  thereby  to  give  a 
preference.  It  is  further  provided  that  one  shall  be  deemed 
to  have  given  a  preference  if,  being  insolvent,  he  has  pro- 
cured or  suffered  a  judgment  against  himself  in  favor  of 
any  person,  or  made  a  transfer  of  any  of  his  property,  and 
the  effect  of  the  enforcement  of  such  judgment  or  transfer 
will  be  to  enable  any  one  of  his  creditors  to  obtain  a  greater 
percentage  of  his  debt  than  any  others  of  such  creditors  of 
the  same  class.  If,  however,  property  transferred  to  a  cred- 
itor by  way  of  preference  is  by  him  transferred  to  a  bona 
fide  purchaser  for  value,  the  latter  is  not,  it  would  seem,  af- 
fected by  the  illegality  of  the  original  transfer.^^  The  stat- 
ute also  gives  the  trustee  the  right  to  take  proceedings  to  set 
aside  any  transfer  in  fraud  of  creditors,  and  vests  in  him 
the  title  to  property  so  transferred.^^     Under  the  act,  more- 

42  1  Stimson's  Am.  St.  Law,  §  4593. 

43  Act  July  1,  1898,  §  60.     See  Collier,  Bankr.  (3d  Ed.)  338  et  seq. 
44Rison  V.  Knapp,  1  Dill.  187,  Fed.  Cas.  No.  11,861;  In  re  Mullen 

(D.  C.)  101  Fed.  413. 
45  Bankruptcy  Act,  §§  67,  70;   Loveland,  Bankr.  299. 

(HIT) 


§   498  REAL  PROPERTY.  [Ch.  33 

over,  any  general  assignment  for  the  benefit  of  cr(>ditors,  al- 
though free  from  fraudulent  intent,  and  containing  no  pref- 
erences, is  an  act  authorizing  an  adjudication  of  bankruptcy, 
whereupon  the  assignment  becomes  void.^^ 

§  498.     Transfers  by  disseisees. 

By  St.  32  Hen.  VIII.  c.  9,'*"  it  was  declared  to  be  un- 
lawful to  buy  or  sell  any  pretended  right  or  title  to  any 
lands  or  hereditaments  unless  the  vendors  or  their  ancestors, 
or  the  persons  through,  whom  the  claim  is  derived,  have  been 
in  possession  of  the  property,  or  of  the  reversion  or  remain- 
der thereof,  or  taken  the  rents  or  profits  thereof,  within  a 
year  before  the  sale,  but  the  purchase  of  a  pretended  title, 
by  a  person  in  lawful  possession  of  the  rents  and  profits,  was 
declared  to  be  allowable.  It  is  sometimes  said  that  this  stat- 
ute is  merely  declaratory  of  the  common  law,  but  since,  at 
common  law,  and  before  the  Statute  of  Uses,  the  transfer 
of  freehold  interests  in  land  necessarily  involved  a  transfer 
of  the  seisin,  there  was,  it  would  seem,  but  little  room  for 
the  application  of  a  statute  forbidding  the  transfer  of  land 
by  one  who  was  disseised, — that  is,  the  transfer  of  a  right 
of  entry  merely.'*^ 

In  a  few  states  in  this  country  the  English  statute,  or 
the  principle  involved  therein,  was  adopted  as  a  part  of  the 
common  law.^^  In  other  states  there  are  specific  statutory- 
provisions  invalidating  transfers  of  land  in  the  adverse  pos- 

46  Bankruptcy  Act,  §  3;  Collier,  Bankr.  42;  West  Co.  v.  Lea,  174 
U.  S.  594;  In  re  Meyer  (C.  C.  A.)  98  Fed.  976. 

47  The  "Pretended  Title  Act"  (A.  D.  1540). 

48  See  Rawle',  Covenants  for  Title,  §  47.  Article  in  2  Law  Quart. 
Rev.  481,  by  Prof.  Maitland. 

■49  Bernstein  v.  Humes,  60  Ala.  582,  31  Am.  Rep.  52;   Patterson  v. 
Nixon,  79  Ind.  251;  Tabb  v.  Baird,  3  Call  (Va.)  481;  Barry  v.  Adams, 
3  Allen  (Mass.)   493;   4  Kent's  Comm.  448. 
(1118) 


Oh.  33]  RESTRICTIONS  ON  TRANSFER.  §   498 

session  of  another  person.^*^  In  a  majority  of  the  states, 
however,  at  the  present  time,  no  restriction  upon  the  right 
of  transfer  arising  from  the  fact  that  the  land  is  in  the  ad- 
verse possession  of  a  third  person  is  recognized, ^^  and  that 
such  is  the  law  is  quite  frequently  declared  by  statute,^^ 

The  adverse  possession  in  a  third  person  which  invalidates 
the  conveyance  need  not,  as  a  rule,  be  under  color  of  title,'^' 
though  in  two  states  the  statute  is  otherwise  construed.^* 

The  statute  has  been  held  not  to  apply  to  a  transfer  made 
in  the  performance  of  an  executory  contract  valid  when 
made,^^   to   a  transfer  made  to  correct   a   mistake,^^   to   a 

BO  1  Stimson's  Am.  St.  Law,  §  1401. 

61  Roberts  v.  Cooper,  20  How.  (U.  S.)  467;  Matthews  v.  Hevner,  2 
App.  D.  C.  349;  Doe  d.  Cain  v.  Roe,  23  Ga.  82;  Lytle  v.  State,  17 
Ark.  608;  Mathewson  v.  Fitch,  22  Cal.  86;  Bayard  v.  McLane,  3 
Har.  (Del.)  139;  Farrar  v.  Fessenden,  39  N.  H.  268;  Sims  v.  De 
Graffenreid,  4  McCord  (S.  C.)  253;  Stoever  v.  Whitman's  Lessee,  6 
Binn.  (Pa.)  416. 

52  1  Stimson's  Am.  St.  Law,  §  1401;  Trustees  of  Putnam  Free 
School  V.  Fisher,  34  Me.  172;  Crane  v.  Reeder,  21  Mich.  24,  4  Am. 
Rep.  430;  Cassedy  v.  Jackson,  45  Miss.  .397;  Carrington  v.  Goddin, 
13  Grat.  (Va.)  587;  Stewart  v.  McSweeney,  14  Wis.  468;  Shortall  v. 
Hinckley,  31  111.  219. 

In  England,  the  statute  was  regarded  as  invalidating  a  sale  by  one 
who  had  not  been  in  possession  for  a  year.  Doe  d.  Williams  v. 
Evans,  1  C.  B.  717.  But  8  &  9  Vict.  c.  106,  making  rights  of 
entry  alienable,  changed  the  law  in  this  respect.  Kennedy  v. 
Lyell,  15  Q.  B.  Div.  491;  Jenkins  v.  Jones,  9  Q.  B.  Div.  128. 

53  Sharp  V.  Robertson's  Ex'rs,  76  Ala.  343;  Dubois  v.  Marshall,  3 
Dana  (Ky.)  336;  Barry  v.  Adams,  3  Allen  (Mass.)  493;  German 
Mut.  Ins.  Co.  of  Indianapolis  v.  Grim,  32  Ind.  249,  2  Am.  Rep.  341. 

64  See  Crary  v.  Goodman,  22  N.  Y.  170;  Higinbotham  v.  Stoddard, 
72  N.  Y.  94;  Stoddard  v.  Whiting.  46  N.  Y.  627;  Kreuger  v.  Schultz, 
6  N.  D.  310. 

55  Greer  v.  Wintersmith,  85  Ky.  516;  Simon  v.  Gouge,  12  B.  Mon. 
(Ky.)  156;  Gunn  v.  Scovil,  4  Day  (Conn.)  234;  Hale  v.  Darter,  10 
Humph.   (Tenn.)  92. 

56  Hopkins  v.  Paxton,  4  Dana  (Ky.)  36;  Ross  v.  Blair,  Meigs 
(Tenn.)  525;  Augusta  Mfg.  Co.  v.  Vertrees,  4  Lea  (Tenn.)  75. 

(1119) 


§   498  REAL  PROPERTY.  [Ch.  3S 

judicial  salc,"^^  to  a  transfer  by  the  state,'^'^  nor  to  a  release 
made  to  the  person  in  possession.^'' 

A  conveyance  of  land  in  the  adverse  possession  of  an- 
other, in  violation  of  the  statute,  though  it  does  not  convey 
the  legal  title,  so  as  to  enable  the  grantee  to  maintain  an  ac- 
tion against  the  person  in  possession,  is  almost  invariably 
regarded  as  effective  for  the  purpose  of  transferring  the 
title  as  between  the  parties,  and  as  against  everybody  ex- 
cept the  person  in  possession  and  those  claiming  under  him.^'^ 
Consequently,  while  the  grantor  can  alone  sue  in  ejectment 
or  otherwise  for  the  recovery  of  the  land,  a  recovery  by  him 
inures  to  the  benefit  of  the  grantee,*^^  and  the  grantee  may 
himself,  if  he  so  desires,  bring  ejectment  in  the  name  of  his- 
grantor. ^^ 

57  Humes  v.  Bernstein,  72  Ala.  546;  Little  v.  Bishop,  9  B.  Mon. 
(Ky.)  240;  Preston  v.  Breckinridge,  86  Ky.  619;  Hoyt  v.  Thompson, 
5  N.  Y.  320;  Coleman  v.  Manhattan  Beach  Improvement  Co.,  94 
N.  Y.  229;  Doe  d.  Williams  v.  Bennett,  26  N.  C.  122. 

58  Ward  V.  Bartholomew,  6  Pick.  (Mass.)  409;  Jackson  v.  Gumaer,. 

2  Cow.  (N.  Y.)  552;  Cassedy  v.  Jackson,  45  Miss.  407;  Hill  v.  Dyer, 

3  Me.  441. 

59  Cameron  v.  Irwin,  5  Hill  (N.  Y.)  272;  Adams  v.  Buford,  6  Dana 
(Ky.)   413. 

60  Farnum  v.  Peterson,  111  Mass.  148;  McMahan  v.  Bowe,  114 
Mass.  140,  19  Am.  Rep.  321;  Snow  v.  Inhabitants  of  Orleans,  126 
Mass,  453;  Den  d.  Hadley  v.  Geiger,  9  N.  J.  Law,  225;  Hamilton  v. 
Wright,  37  N.  Y.  502;  Van  Hoesen  v.  Benham,  15  Wend.  (N.  Y.) 
164;  Park  v.  Pratt,  38  Vt.  545;  Pearson  v.  King,  99  Ala.  125;  Augusta 
Mfg.  Co.  V.  Vertrees,  4  Lea  (Tenn.)  75;  Crowley  v.  Vaughan,  11 
Bush  (Ky.)  517;  Wilson  v.  Nance,  11  Humph.  (Tenn.)  189;  Coogler 
V.  Rogers,  25  Fla.  853;  Wentworth  v.  Abbotts,  78  Wis.  63;  Van 
Hoesen  v.  Benham,  15  Wend.    (N.  Y.)   164. 

61  Wilson  V.  Nance,  11  Humph.   (Tenn.)   189;  Hamilton  v.  Wright, 

37  N.  Y,  502;  Chamberlain  v.  Taylor,  92  N.  Y.  348. 

62  Farnum  v.  Peterson,  111  Mass.  148;  Cleverly  v.  Whitney,  7 
Pick.  (Mass.)  36;  Coogler  v.  Rogers,  25  Fla.  853;  Thompson  v.  Rich- 
ards, 19  Ga.   594;   Justice  v.  Eddings,   75  N.  C.   581;    Park  v.  Pratt 

38  Vt.  545;   Key  v.  Snow,  90  Tenn.  664.     Contra,  Crowley  v.  Vaugh- 
an, 11  Bush  (Ky.)  517. 

(1120) 


Ch.  33]  RESTRICTIONS  ON  TRANSFER.  §499 

§  499.     The  homestead  exemption. 

In  most  of  the  states  there  are  constitutional  or  statutory 
provisions  exempting  from  execution  or  other  forced  sale 
for  debts,  to  a  certain  extent,  the  ''homestead"  or  residence 
of  the  debtor.  While  these  provisions  have  usually  been  dic- 
tated, in  the  various  states,  by  the  same  policy, — that  of  pro- 
tecting the  family  home  as  against  the  demands  of  creditors, 
— they  are  exceedingly  diverse  in  character,  and  even  sub- 
stantially similar  provisions  have  received  different  construc- 
tions in  different  courts.  A  brief  summary  only  of  the  more 
important  features  of  this  legislation,  as  construed  by  the 
courts,  can  here  be  given. 

The  courts  have  sometimes  spoken  of  the  homestead  right 
as  an  ''estate"  in  land.^^  While  the  widow's  homestead,  as 
before  explained,  frequently  has  the  characteristics  of  an 
estate,^'*  it  is  difficult  to  understand  how  the  right  of  an 
owner  of  particular  land  to  hold  such  land  exempt  from  lia- 
bility for  debts  can  be  in  any  sense  an  "estate" ;  and  even 
in  states  where  the  statute  expressly  declares  that  it  is  an 
''estate,"^^  a  new  meaning  must,  it  would  seem,  be  given  to 
the  latter  term,  in  order  that  the  provision  may  have  any  real 
significance.^^  That  the  homestead  right  is  not  an  estate 
has  been  quite  frequently  asserted  judicially.^"^ 

63  Dorrington  v.  Myers,  11  Neb.  389;  Gilbert  v.  Cowan,  3  Lea 
(Tenn.)  203;  Poe  v.  Hardie,  65  N.  C.  447;  Hargadene  v.  Whitfield, 
71  Tex.  482. 

64  Ante,  §  215. 

«5  As  in  Illinois  and  Massachusetts.  See  Browning  v.  Harris,  99 
III.  460;  Abbott  v.  Abbott,  97  Mass.  136;  Pratt  v.  Pratt,  161  Mass. 
278. 

66  The  right  of  homestead  exemption  is  but  a  partial  restoration 
of  the  common  law  of  exemption  of  one's  land  from  liability  for 
debts.  The  estate  of  the  owner,  whether  a  fee  simple,  for  life,  or 
for  years,  is  not  changed  by  the  fact  that  he  marries  or  takes  in- 
digent relatives  to  live  with  him,  or  otherwise  acquires  a  right  to 
the  exemption,  or  by  the  fact  that  he  loses  it  by  abandonment  or 

(1121) 
Real  Prop.— 71. 


g   499  REAL  PROPERTY.  [Ch.   33 

Persons  entitled  to  the  right. 

The  policy  of  the  homestead  statutes  is  usually  to  protect 
the  family  home,  rather  than  individuals,^^  and  consequently 
the  statute  ordinarily  in  terms  gives  the  exemption  only  to 
the  "head  of  a  family,"  or  to  a  "householder,"  or  "house- 
keeper" having  a  family.^  ^  Whether  one  is  the  head  of  a 
family  is  usually  determined  by  the  consideration  whether 
he  is  under  a  legal  or  moral  obligation  to  support  a  person 
or  persons  living  with  him  who  are  dependent  on  him  for 
support. ^*^     The  family  need  not  consist  of  more  than  two 

otherwise.  See  the  discussion  in  Waples,  Homestead,  c.  9.  And  see, 
particularly,  the  dissenting  opinion  of  Clark,  J.,  in  Vanstory  v. 
Thornton,  112  N.  C.  211,  for  a  clear  and  forcible  statement  of  the 
character  of  the  homestead  right. 

67  Black  V.  Curran,  14  Wall.  (U.  S.)  463;  Flatt  v.  Stadler,  16  Lea 
(Tenn.)  371;  Little's  Guardian  v.  Woodward,  14  Bush  (Ky.)  585; 
Citizens'  Nat,  Bank  v.  Green,  78  N.  C.  247;  Jones  v.  Britton,  102 
N.  C.  166;  Yoe  v.  Hanvey,  25  S.  C.  96;  Burns  v.  Keas,  21  Iowa,  257; 
Carrigan  v.  Rowell,  96  Tenn.  185;  McDonald  v.  Crandall,  43  111.  231, 
92  Am.  Dec.  112. 

68  Waples,  Homestead,  c.  3. 

69  Waples,  Homestead,  c.  3.  See  Moyer  v.  Drummond,  32  S.  C. 
165,  17  Am.  St.  Rep.  850;  Bosquett  v.  Hall,  90  Ky.  566,  29  Am.  St. 
Rep.  404;  Linton  v.  Crosby,  56  Iowa,  386,  41  Am.  Rep.  107;  Barry  v. 
Western  Assur.  Co.,  19  Mont.  571,  61  Am.  St.  Rep.  530;  Calhoun  v. 
Williams,  32  Grat.  (Va.)  18,  34  Am.  Rep.  759;  Stanley  v.  Greenwood, 
24  Tex.  224,  76  Am.  Dec.  106. 

TO  Bosquett  v.  Hall,  90  Ky.  566,  29  Am.  St.  Rep.  404;  Moyer  v. 
Drummond,  32  S.  C.  165,  17  Am.  St.  Rep.  850;  Holloway  v.  Holloway, 
86  Ga.  576,  22  Am.  St.  Rep.  484;  Bank  of  Versailles  v.  Guthrey,  127 
Mo.  189,  48  Am.  St.  Rep.  621;  Lane  v.  Philips,  69  Tex.  240,  5  Am.  St. 
Rep.  41;  McMurray  v.  Shuck,  6  Bush  (Ky.)  Ill,  99  Am.  Dec.  662; 
Wade  V.  Jones,  20  Mo.  75,  61  Am.  Dec.  584. 

Accordingly,  an  unmarried  woman,  supporting  the  children  of  a 
deceased  sister,  is  entitled  to  the  homestead  exemption.  Arnold  v. 
Waltz,  53  Iowa,  706,  36  Am.  Rep.  248.  And  likewise  an  unmarried 
man  supporting  brothers  or  sisters  dependent  on  and  living  with 
him.  Greenwood  v.  Maddox,  27  Ark.  649;  Marsh  v.  Lazenby,  41 
Ga.  153.  So,  a  woman  supporting  the  children  or  grandchildren  of 
a  deceased  husband   (Wolfe  v.  Buckley,  52  Tex.   641;    Holloway  v. 

(1122) 


Ch.  33]  RESTRICTIONS  ON  TRANSFER.  §   499 

persons.'^^  But  a  person  living  alone  is  not  usually  entitled 
to  tte  benefit  of  the  law,^-  even  though  he  supports  others, 
if  these  others  live  apart  from  him.'^^  In  a  number  of 
states,  however,  it  has  been  held  that  one  who  has  been  en- 
titled to  the  exemption  as  head  of  a  family  continues  to  be 
so  entitled,  so  long  as  he  remains  in  possession  of  the  same 
home,  although  he  ceases  to  be  actually  the  head  of  a  fam- 
ily, owing  to  the  death  or  departure  of  all  the  other  mem- 
bersJ^  The  head  of  the  family  need  not  be  a  man;'^^  nor 
need  he  or  she  be  married  J  ^     But  a  mere  contract  relation, 

Holloway,  86  Ga.  576,  22  Am.  St.  Rep.  484),  and  a  father  for  whom 
adult  children  living  with  him  did  work  without  wages  (Bank  of 
Versailles  v.  Guthrey,  127  Mo.  189,  48  Am.  St.  Rep.  621),  have  been 
held  to  be  entitled  to  claim  the  exemption.  But  one  who  supports 
relatives  living  with  him  who  are  independent  of  his  support  is  not 
entitled  to  claim  the  homestead  right.  Harbison  v.  Vaughan,  42 
Ark.  539;  Ramey  v.  Allison,  64  Tex.  697.  Nor  is  one  who  supports 
persons  living  with  him  who  are  not  related  to  him.  Bosquett  v. 
Hall,  90  Ky.  566,  29  Am.  St.  Rep.  404;  Galligar  v.  Payne,  34  La.  Ann. 
1057;  Hill  v.  Franklin,  54  Miss.  632;  Whitehead  v.  Nickelson,  48 
Tex.  517. 

Ti  Kitchen  V.  Burgwin,  21  111.  40;  Barney  v.  Leeds,  51  N.  H.  253; 
Chamberlain  v.  Brown,  33  S.  C.  597;  Miller  v.  Finegan,  26  Fla.  29. 

72  Wilson  V.  Cochran,  31  Tex.  677,  98  Am.  Dec.  553;  Calhoun  v. 
Williams,  32  Grat.  (Va.)  18,  34  Am.  Rep.  759;  Rock  v.  Haas,  110  111. 
528. 

T3Rock  V.  Haas,  110  111.  528;  Ridenour-Baker  Grocery  Co.  v.  Mon- 
roe, 142  Mo.  165.  And  see  Pearson  v.  Miller,  71  Miss.  379,  42  Am. 
St.  Rep.  470. 

74Silloway  v.  Brown,  12  Allen  (Mass.)  30;  Stanley  v.  Snyder,  43 
Ark.  429;  Stutts  v.  Sale,  92  Ky.  5,  36  Am.  St.  Rep.  575;  Wilkinson  v. 
Merrill,  87  Va.  513;  Doyle  v.  Coburn,  6  Allen  (Mass.)  71;  Barney  v. 
Leeds,  51  N.  H.  253. 

75  Brooks  v.  Collins,  11  Bush  (Ky.)  622;  Chamberlain  v.  Brown, 
33  S.  C.  597.    And  see  cases  referred  to  ante,  note  70. 

76  Arnold  v.  Waltz,  53  Iowa,  706,  36  Am.  Rep.  248;  Ellis  v.  White, 
47  Cal.  73;  Lane  v.  Philips,  69  Tex.  240,  5  Am.  St.  Rep.  41;  Cham- 
berlain v.  Brown,  33  S.  C.  597;  Marsh  v.  Lazenby,  41  Ga.  154;  Green- 
wood V.  Maddox,  27  Ark.  649. 

(1123) 


§   499  REAL  PROPERTY.  [Ch.  3S 

as  when  one  has  onl^'^  servants  living  with  him,  is  not  suffi- 
cient/^ 

During  the  husband's  life,  the  wife  is,  by  the  construction 
placed  on  some  of  the  statutes,  excluded  from  the  right  to  a 
homestead  exemption,  even  in  her  own  property,  she  not  be- 
ing the  head  of  a  family,'''^  while,  under  other  statutes,  she 
is  entitled  to  such  homestead  in  her  own  property.'*'^  Occa- 
sionally the  wife  has  been  held  to  be  entitled  to  claim  a  home- 
stead in  the  husband's  land  on  the  husband's  failure  to  do 
so,^°  or  upon  the  desertion  of  the  wife  and  family  by  the 
husband.^  ^ 

Land  in  which  the  right  exists. 


Since  the  purpose  of  the  homestead  law  is  usually  to  pro- 
tect the  family  residence,  only  such  land  is  ordinarily  ex- 
empt thereunder  as  is  occupied  as  such  residence.^^  This 
requirement  of  occupancy  is  not  regarded  as  satisfied  by  a 
mere  indefinite  intention  to  occupy  the  land  as  a  home  in 
the  future.^^     But   acts  constituting  a  preparation  of  the 

77  Calhoun  v.  McLendon,  42  Ga.  405;  Garaty  v.  Du  Bose,  5  Rich. 
(S.  C.)  493;  Ellis  v.  Davis,  90  Ky.  183;  Whitehead  v.  Nickelson,  48 
Tex.  517;  Calhoun  v.  Williams,  32  Grat.  (Va.)  18,  34  Am.  Rep.  759. 
But  one  having  only  a  servant  living  with  him  was  held  to  be  a 
"housekeeper."     Pierce  v.  Kusic,  56  Vt,  418. 

TsFuselier  v.  Buckner,  28  La.  Ann.  594;  Turner  v.  Argo,  89  Tenn. 
443;  Barry  v.  Western  Assur.  Co.,  19  Mont.  571,  61  Am.  St.  Rep. 
530.     See  Rosenberg  v.  Jett  (C.  C.)  72  Fed.  90. 

79  Crane  v.  Waggoner,  33  Ind.  83;  Partee  v.  Stewart,  50  Miss.  717; 
Hill  V.  Myers,  46  Ohio  St.  183;  Ehrck  v.  Ehrck,  106  Iowa,  614; 
McPhee  v.  O'Rourke,  10  Colo.  301.  See  Kenley  v.  Hudelson,  99  111. 
493,  39  Am.  Rep.  31. 

80  Bowen  v.  Bowen,  55  Ga.  182;  Farley  v.  Hopkins,  79  Cal.  203. 
siHollis  V.  State,  59  Ark.  211,  43  Am.  St.  Rep.  28;  Moore  v.  Dun- 
ning, 29   111.   130. 

82  Waples,  Homestead,   c.   6. 

83  Williams  v.  Dorris,  31  Ark.  466;  Lee  v.  Miller,  11  Allen  (Mass.) 
37;  Christy  v.  Dyer,  14  Iowa,  438,  81  Am.  Dec.  493;  Evans  v.  Caiman, 
92  Mich.  427,  31  Am.  St.  Rep.  606;  Power  v.  Burd,  18  Mont.  22;  Fant 
(112i) 


Ch.  33]  RESTRICTIONS  ON  TRANSFER.  §   499 

premises  for  residence,  coupled  with  an  intention  to  reside 
thereon,  are  usually  regarded  as  sufficient.^^  The  premises 
may,  if  partly  used  as  a  residence,  be  occupied  in  part  for 
business  purposes,^^  or  they  may,  according  to  some  deci- 
sions, be  leased  in  part  to  others.^^  But,  generally,  occupa- 
tion by  a  tenant  is  not  sufficient  to  give  the  homestead  ex- 
emption to  the  landlord.*"^ 

In  some  states  one  is  allowed  a  homestead  right  in  a  tract 
of  land  adjoining  that  on  which  the  residence  is  situated, 
provided,  generally,  that  the  tract  be  used  in  connection  with 
the  residence.®*  And  the  exemption  has  been  allowed  in 
land  adjoining,  and  used  in  connection  with,  the  claimant's 
residence,  without  reference  to  his  ownership  of  the  latter, 

V.  Talbot,  81  Ky.  23;  Grosholz  v.  Newman,  21  Wall.  (U.  S.)  481; 
Fort  V.  Powell,  59  Tex.  321;  Currier  v.  Woodward,  62  N.  H.  63; 
Greenman  v.  Greenman,  107  111.  404. 

s^Gilworth  v.  Cody,  21  Kan.  702;  Hanlon  v.  Pollard,  17  Neb.  368; 
Cameron  v.  Gebhard,  85  Tex.  610,  34  Am.  St.  Rep.  832;  Woodbury 
V.  Warren,  67  Vt.  251,  48  Am.  St.  Rep.  815;  Shaw  v.  Kirby,  93  Wis. 
379,  57  Am.  St.  Rep.  927;  Deville  v.  Widoe,  64  Mich.  593,  8  Am.  St. 
Rep.  852;   Waples,  Homestead,  193. 

85  In  re  Ogburn's  Estate,  105  Cal.  95;  Stevens  v.  Hollingsworth, 
74  111.  202;  Bebb  v.  Crowe,  39  Kan.  342;  Phelps  v.  Rooney,  9  Wis.  70, 
76  Am.  Dec.  244;  Corey  v.  Schuster,  44  Neb.  269;  De  Ford  v.  Painter, 
3  Okl.  80.  Contra,  Johnson  v.  Moser,  66  Iowa,  536;  Crow  v.  Whit- 
worth,  20  Ga.  38. 

8G  Mercier  v.  Chace,  11  Allen  (Mass.)  194;  Layson  v.  Grange,  48 
Kan.  440;  De  Ford  v.  Painter,  3  Okl.  80;  Lubbock  v.  McMann,  82 
Cal.  226,  16  Am.  St.  Rep.  108.  Contra,  Rhodes  v.  McCormack,  4 
Iowa,  368,  68  Am.  Dec.  663;  Hargadene  v.  Whitfield,  71  Tex.  482; 
Casselman  v.  Packard,  16  Wis.  114,  82  Am.  Dec.  710. 

87Kaster  v.  McWilliams,  41  Ala.  302;  Evans  v.  Caiman,  92  Mich. 
427,  31  Am.  St.  Rep.  606;  Casselman  v.  Packard,  16  Wis.  114,  82 
Am.  Dec.  710;  Ashton  v.  Ingle,  20  Kan.  670,  27  Am.  Rep.  197;  Wade 
V.  Wade,  9  Baxt.  (Tenn.)  612;  Maloney  v.  Hefer,  75  Cal.  422,  7  Am. 
St.  Rep.  180;  True  v.  Morrill's  Estate,  28  Vt.  672. 

88  Gregg  v.  Bostwick,  33  Cal.  220,  91  Am.  Dec.  637;  Walters  v. 
People,  18  111.  194,  65  Am.  Dec.  730;  Medlenka  v.  Downing,  59  Tex. 
32;  Randal  v.  Elder,  12  Kan.  257;  Secombe  v.  Borland,  34  Minn.  258; 
Perkins  v.  Quigley,  62  Mo.  498. 

(1125) 


§  499  REAL  PROPERTY.  [Ch.   33 

or  to  whether  he  has  the  same  quantum  of  estate  in  both. 
tracts.  ^^  In  some  states  the  right  of  homestead  extends  even 
to  land  not  adjoining  the  family  residence,  if  used  in  connec- 
tion therewith.^" 

The  quantity  of  land  which  may  he  held  as  exempt  from 
the  claims  of  creditors  is  limited  by  the  statute,  either  aa- 
regards  value  or  extent,  and  occasionally  as  regards  botibi,®* 
the  limitation  being  frequently  different,  according  to  wheth- 
er the  property  is  located  in  a  town  or  city,  or  in  the  coun- 
try,— ^that  is,  whether  it  is  an  "urban"  or  a  "rural"  home- 
stead.^^ 

The  application  of  the  statutory  limitation  upon  the  pe- 
cuniary amount  of  the  exemption  is  with  reference  to  the 
value  of  a  fee-simple  estate  in  the  property,  though  the 
claimant  of  the  exemption  has  only  a  less  estate  therein,^^ 
and  the  value  of  improvements  is  included  in  the  estimate,®"* 
while  the  amount  of  incumbrances  is  deducted.®^ 

89  Mason  v.  Columbia  Finance  &  Trust  Co.,  99  Ky.  117,  59  Am.  St. 
Rep.  451;  Libbey  v.  Davis,  68  N.  H.  355;  Tyler  v.  Jewett,  82  Ala.  93.. 

90  Hodges  V.  Winston,  95  Ala.  514,  36  Am.  St.  Rep.  241;  Bothell  v. 
Sweet  (N.  H.)  6  Atl.  646;  Martin  v.  Hughes,  67  N.  C.  293;  Pryor  v. 
Stone,  19  Tex.  371,  70  Am.  Dec.  341;  Gregg  v.  Bostwick,  33  Cal.  220, 
91  Am.  Dec.  637;  Hastie  v.  Kelley,  57  Vt.  293. 

91  Waples,  Homestead,  c.  7. 

92  See  First  Nat.  Bank  of  Owatonna  v.  Wilson,  62  Ark.  140 ;  Kie- 
wert  V.  Anderson,  65  Minn.  491,  60  Am.  St.  Rep.  487;  Crilly  v.  Sheriff, 
25  La.  Ann.  219;  McDaniel  v.  Mace,  47  Iowa,  509;  Topeka  Water- 
Supply  Co.  V.  Root,  56  Kan.  187;  Galligher  v.  Smiley,  28  Neb.  189,  26 
Am.  St.  Rep.  319;  Taylor  v.  Boulware,  17  Tex.  74. 

93  Brown  v.  Starr,  79  Cal.  608,  12  Am.  St.  Rep.  180;  Yates  v.  McKib- 
ben,  66  Iowa,  357;  Arnold  v.  Jones,  9  Lea  (Tenn.)  545;  Franks  v. 
Lucas,  14  Bush  (Ky.)  395. 

94Vanstory  v.  Thornton,  110  N.  C.  10;  Lubbock  v.  McMann,  82 
Cal.  226,  16  Am.  St.  Rep.  108.  Contra,  under  statute,  Richards  v. 
Nelms,  38  Tex.  445;  Chase  v.  Swayne,  88  Tex.  218. 

95  Hoy  V.  Anderson,  39  Neb.  386,  42  Am.  St.  Rep.  591;  State  v.  Ma- 
son, 88  Mo.  222. 

(1126) 


Ch.  33]  RESTRICTIONS  ON  TRANSFER.  §   499 

Character  of  the  claimant's  interest  in  the  land. 

In  determining  the  right  to  a  homestead  exemption,  the 
character  of  his  estate  in  the  land  is  immaterial.^®  A  life 
estate  in  the  land  is,  accordingly,  sufficient  to  entitle  one  to 
assert  the  right,^^  as  is  a  leasehold  estate.^^  A  present  in- 
terest is,  however,  necessary,  and  one  in  remainder  or  re- 
version is  insufficient,  since  it  does  not  involve  any  right  of 
occupancy.^^ 

One  is  entitled  to  the  homestead  exemption,  though  he  has 
an  equitable  estate  only  in  the  land,^*^*^  as  when  he  is  occu- 
pying the  land  under  a  contract  of  purchase  merely.^ ^^ 
It  may  be  claimed  in  land  subject  to  a  mortgage,  though  this 
constitutes  a  mere  ''equity  of  redemption."^ ^^ 

In  some  states,  a  tenant  in  common  may  claim  the  ex- 
emption in  the  land  so  concurrently  held,  if  he  occupies  it 

sewaples.  Homestead,  108;  Tyler  v.  Jewett,  82  Ala.  93;  Deere  v. 
Chapman,  25  111.  610,  79  Am.  Dec.  350;  Johnson  v.  Richardson,  33 
Miss.  462;  Sears  v.  Hanks,  14  Ohio  St.  298,  84  Am.  Dec.  378. 

97  Arnold  v.  Jones,  9  Lea  (Tenn.)  545;  Kendall  v.  Powers,  96  Mo. 
142,  9  Am.  St.  Rep.  326;  Pendergest  v.  Heekin,  94  Ky.  384;  Deere  v. 
Chapman,  25  111.  610,  79  Am.  Dec.  350. 

es  In  re  Emerson's  Homestead,  58  Minn.  450;  Maatta  v.  Kippola, 
102  Mich.  116;  Conklin  v.  Foster,  57  111.  104;  Phillips  v.  Warner, 
(Tex.  App.)   16  S.  W.  423. 

99Murchison  v.  Plyler,  87  N.  C.  79;  Brokaw  v.  Ogle,  170  111.  115; 
Cornish  v.  Frees,  74  Wis.  490;  Howell  v.  Jones,  91  Tenn.  402.  But 
if  the  preceding  estate  ends  before  a  sale  under  execution,  the  ex- 
emption may  be  asserted.     Stern  v.  Lee,  115  N.  C.  426. 

100  Bartholomew  v.  West,  2  Dill.  290,  Fed.  Cas.  No.  1,071;  Hewitt 
V.  Rankin,  41  Iowa,  35;  Rice  v.  Rice,  108  111.  199;  Doane's  Ex'r  v. 
Doane,  46  Vt.  485;   Waples,  Homestead,  117. 

101  Lessen  v.  Goodman,  97  Iowa,  681,  59  Am.  St.  Rep.  432;  Staf- 
ford V.  Woods,  144  111.  203;  McKee  v.  Wilcox,  11  Mich.  358,  83  Am. 
Dec.  743;  Canfield  v.  Hard,  58  Vt.  217;  Myrick  v.  Bill,  5  Dak.  167; 
Alexander  v.  Jackson,  92  Cal.  514,  27  Am.  St.  Rep.  158. 

102  Fellows  V.  Dow,  58  N.  H.  21;  State  v.  Mason,  88  Mo.  222;  Hin- 
son  V.  Adrian,  92  N.  C.  121;  Doane's  Ex'r  v.  Doane,  46  Vt.  485. 

(1127) 


§  499  I^EAL  PROPERTY.  [Ch.  33 

as  a  family  residence/ ^^  while  in  other  states  a  contrary- 
view  has  been  taken.  ^*^^ 

Land  owned  by  a  partnership  is,  in  a  number  of  the  states, 
not  exempt  from  liability  for  the  debts  of  a  partnership  be- 
cause used  by  one  of  the  partners  as  a  family  residence,^  °' 
though  in  other  states  it  is  exempt  if  all  the  partners  assent  to 
the  claim  of  exemption.^ ''^  The  right  of  one  of  the  copart- 
ners to  an  exemption  in  his  share  of  the  partnership  land  as 
against  an  individual  creditor  is,  it  would  seem,  to  be  de- 
cided with  reference  to  the  rule  prevailing  in  the  particular 
jurisdiction  in  regard  to  land  owned  in  common,  the  right 
to  such  exemption  being,  however,  contingent  upon  whether 
he  has  himself  occupied  the  land  with  his  family. 

Debts  to  which  the  exemption  extends. 


The  existence  of  the  homestead  exemption  has  the  effect, 
generally,  of  relieving  the  property  from  liability  for  the 
debts  of  the  owner,  but  the  statute  frequently  makes  ex- 
ceptions in  favor  of  certain  classes  of  creditors.  The  stat- 
ute in  almost  all  the  states  provides  in  express  terms  that 

103  McClary  v.  Bixby,  36  Vt.  254,  84  Am.  Dec.  684;  Thorn  v.  Thorn, 
14  Iowa,  49,  81  Am.  Dec.  451;  Clements  v.  Lacy,  51  Tex.  150;  Lewis 
V.  White,  69  Miss.  352,  30  Am.  St.  Rep.  557;  Lozo  v.  Sutherland,  38 
Mich.  171;  Giles  v.  Miller,  36  Neb.  346,  38  Am.  St.  Rep.  730. 

104  Wolf  V.  Fleischacker,  5  Cal.  244,  63  Am.  Dec.  121;  Thurston  v. 
Maddocks,  6  Allen  (Mass.)  427;  Holmes  v.  Winchester,  138  Mass. 
542;  West  v.  Ward,  26  Wis.  579;  Ventress  v.  Collins,  28  La.  Ann. 
783. 

1 05  Trowbridge  v.  Cross,  117  111.  109;  Brady  v.  Kreuger,  8  S.  D. 
464;  Michigan  Trust  Co.  v.  Chapin,  106  Mich.  384,  58  Am.  St.  Rep. 
490;  Bishop  v.  Hubbard,  23  Cal.  514,  83  Am.  Dec.  132;  Ex  parte 
Karish,  32  S.  C.  437,  17  Am.  St.  Rep.  865;  Chalfant  v.  Grant,  3  Lea 
(Tenn.)  118;  Drake  v.  Moore,  66  Iowa,  58;  Terry  v.  Berry,  13  Nev. 
514;   Short  v.  McGruder   (C.  C.)   22  Fed.  46. 

106  Ferguson  v.  Speith,  13  Mont.  487,  40  Am.  St.  Rep.  459;  McMil- 
lan V.  Williams,  109  N.  C.  252;  Hunnicutt  v.  Summey,  63  Ga.  586; 
Swearingen  v.  Bassett,  65  Tex.  267. 

(1128) 


Ch.  33]  RESTRICTIONS  ON  TRANSFER.  §  499 

the  exemption  of  the  laud  from  liability  for.  debts  shall  not 
extend  to  a  debt  to  the  vendor  for  the  purchase  price,^^^  and, 
apart  from  any  such  express  provision,  the  land  would  prob- 
ably be  regarded  as  liable  for  such  a  debt,  either  on  the  gi'ound 
of  the  existence  of  a  vendor's  lien,  or  by  the  construction 
placed  upon  the  statute.  But  the  exemption  has  been  held 
to  extend  to  a  claim  for  money  borrowed  to  pay  the  purchase 
price,  this  not  being  within  the  statutory  exception  in  favor 
of  purchase-money  claims,^ ^^  though  in  some  cases  the  view 
is  taken  that,  if  it  is  understood  between  the  purchaser  and 
the  lender  that  the  loan  shall  be  used  in  paying  the  purchase 
price,  the  lender  may  enforce  his  claim  against  the  home- 
stead.109 

There  is  quite  frequently  a  provision  that  the  exemption 
shall  not  exist  as  against  debts  incurred  in  improving  the 
premises.^  ^"^ 

Taxes  likewise  are  usually  made  enforceable  against  the 
homestead,  either  by  the  terms  of  the  homestead  law  or  the 
provisions  in  regard  to  sales  of  land  for  taxes.^-^^     Generally 

107  Waples,  Homestead,  c.  11. 

losEyster  v.  Hatheway,  50  111.  521,  99  Am.  Dec.  537;  Dreese  v. 
Myers,  52  Kan.  126,  39  Am.  St.  Rep.  336;  Perry  v.  Ross,  104  Cal.  15, 
43  Am.  St.  Rep.  66;  Loftis  v.  Loftis,  94  Tenn.  232.  See  Nottes'  Ap- 
peal, 45  Pa.  St.  361. 

io9Acrumaii  v.  Barnes,  66  Ark.  442,  74  Am.  St.  Rep.  104;  White  v. 
Wheelan,  71  Ga.  533;  Warhmund  v.  Merritt,  60  Tex.  24;  Nichols  v. 
Overacker,  16  Kan.  54;  Carey  v.  Boyle,  53  Wis.  574. 

If  the  loan  and  the  purchase  can  all  be  considered  one  transaction, 
then  the  lender  is,  it  seems,  entitled  to  stand  in  the  position  of  the 
vendor.  Austin  v.  Underwood,  37  111.  438,  87  Am.  Dec.  254;  Dreese  v. 
Myers,  52  Kan.  126,  39  Am.  St.  Rep.  336. 

110  See  Lewton  v.  Hower,  18  Fla.  872;  McWilliams  v.  Bones,  84 
Ga.  203;  Hurd  v.  Hixon,  27  Kan.  722;  All  v.  Goodson,  33  S.  C.  229; 
Miller  v.  Brown,  11  Lea  (Tenn.)  155;  Butler  v.  Davis,  15  Ky.  Law 
Rep.  273,  23  S.  W.  220. 

111  Higgins  V.  Bordages,  88  Tex.  458;  Douthett  v.  Winter,  108  111. 
330;  Lamar  v.  Sheppard,  80  Ga.  25;  Shell  v.  Duncan,  31  S.  C.  547; 
Waples,  Homestead,  327. 

(1129) 


§  499  REAL  PROPERTY.  rCh.  33 

speaking,  liowev^,  claims  of  the  state  stand  upon,  the  same 
plane  as  the  claims  of  private  individuals  as  regards  their 
enforcement  against  the  homestead  property.-^  ^^ 

In  some  states  the  statute  is  construed  as  exempting  the 
homestead  premises  only  from  claims  based  on  contract,  leav- 
ing them  liable  for  claims  arising  from  tort;  this  construc- 
tion being  placed  on  a  provision  exempting  the  premises  from 
liability  for  "debts  contracted.""^  In  some  states  the  ex- 
emption is  effective  only  as  against  debts  incurred  after  the 
acquisition  of  the  property,  or  after  its  occupation  as  a 
homestead,  or  after  a  formal  declaration  of  an  intention  to^ 
claim  the  homestead  rights.^ ^* 

Liens  which  have  attached  to  the  land  before  its  purchase,, 
or  before  it  acquired  its  homestead  character,  can  be  enforced;: 
against  it.^-^*^ 

112  Central  Kentucky  Lunatic  Asylum  v.  Craven,  98  Ky.  105,  5& 
Am.  St.  Rep.  323;  Fink  v.  O'Neil,  106  U.  S.  272;  Colquitt  v.  Brown, 
63  Ga.  440;  Ren  v.  Driskell,  11  Lea  (Tenn.)  642;  State  v.  Pitts,  51 
Mo.  133. 

Accordingly,  the  homestead  has  been  held  to  be  exempt  from  sale 
under  execution  to  satisfy  a  fine  or  judgment  for  costs  in  a  criminal 
prosecution.  Com.  v.  Lay,  12  Bush  (Ky.)  283,  23  Am.  Rep.  718; 
Fink  V.  O'Neil,  106  U.  S.  272;  Hollis  v.  State,  59  Ark.  211,  43  Am.  St. 
Rep.  28;  Loomis  v.  Gerson,  62  111.  11. 

113  Whiteacre  v.  Rector,  29  Grat.  (Va.)  714,  26  Am.  Rep.  420;  Nowl- 
ing  V.  Mcintosh,  89  Ind.  593;  Burton  v.  Mill,  78  Va.  468;  Lathrop 
v.  Singer,  39  Barb.  (N.  Y.)  396;  McLaren  v.  Anderson,  81  Ala.  106; 
Davis  v.  Henson,  29  Ga.  345. 

114  Waples,  Homestead,  282  et  seq. 

iisBullene  v.  Hiatt,  12  Kan.  98;  Meador  v.  Meador,  88  Ky.  217; 
Robinson  v.  Wilson,  15  Kan.  595,  22  Am.  Rep.  272;  Pender  v.  Lan- 
caster, 14  S.  C.  25,  37  Am.  Rep.  720;  Dye  v.  Cooke,  88  Tenn.  275,  17 
Am.  St.  Rep.  882;  Zander  v.  Scott,  165  111.  51;  Davis  Sewing  Mach. 
Co.  V.  Whitney,  61  Mich.  518;  Bunn  v.  Lindsay,  95  Mo.  250;  Clements 
V.  Lacy,  51  Tex.  150. 

So  in  the  case  of  mortgage  liens.  Mabry  v.  Harrison,  44  Tex.  286; 
Spaulding  v.  Crane,  46  Vt.  292;  Gibson  v.  Mundell,  29  Ohio  St.  523; 
Webster  v.  Dundee  Mortgage  &  Trust  Co.,  93  Ga.  278;  McCormick 
V.  Wilcox,  25  111.  274. 

(1130) 


Ch.33]  RESTRICTIONS  ON  TRANSFER.  §499' 

The  exemption  cannot  be  asserted  as  against  debts  which 
were  contracted  before  the  adoption  of  the  law  creating  or 
enlarging  the  right,  and  under  which  the  right  is  asserted, 
since  the  law,  if  given  such  retroactive  effect,  would  impair 
the  obligation  of  contracts,  in  violation  of  the  United  States 
constitution.^  ^^ 


Claim  and  selection. 


Though,  usually,  occupancy  for  residence  purposes  is  suffi- 
cient to  give  to  land  the  homestead  character,^ ^"^  in  some 
states  it  is  necessary  that  the  owner  and  occupant  also  put 
on  record  his  claim  of  homestead  rights  in  the  property, 
and  the  exemption  is  not  effective  as  against  debts  incurred 
before  this  is  done.^^^ 

The  procedure  to  be  adopted  in  order  to  secure  the  exemp- 
tion in  case  of  issuance  of  execution  against  the  owner  varies 
greatly  in  the  different  states,  there  usually  being  a  pro- 
vision for  the  presentation  by  the  owner  of  his  claim  of  ex- 
emption, and  a  selection  by  him  of  the  amount  allowed  by 
law  from  the  premises  occupied  by  him.-^-^^ 


Transfer  of  the  homestead  property. 


The  requirement  which  usually  exists,  that  the  wife  of 

iisGunn  v.  Barry,  15  Wall.  (U.  S.)  610;  Edwards  v.  Kearzey,  96 
U.  S.  595;  Tillotson  v.  MAllaxd,  7  Minn.  513  (Gil.  419),  82  Am.  Dec. 
112;  Homestead  Cases,  22  Grat.  (Va.)  266,  12  Am.  Rep.  507;  Dye  v. 
Cooke,  88  Tenn.  275,  17  Am.  St.  Rep.  882. 

117  Taylor  v.  Hargous,  4  Cal.  272,  60  Am.  Dec.  606;  Coates  v.  Cald- 
well, 71  Tex.  19,  10  Am.  St.  Rep.  725;  Green  v.  Farrar,  53  Iowa,  426; 
Broome  v.  Davis,  87  Ga.  584;  Barton  v.  Drake,  21  Minn.  299;  Imhoff 
V.  Lipe,  162  111.  282;  Davis  v.  Day,  56  Ark.  156;  Riggs  v.  Sterling,  60 
Mich.  643. 

118  See  Wright  v.  Westheimer,  2  Idaho,  962;  Timothy  v.  Chambers, 
85  Ga.  267,  21  Am.  St.  Rep.  163;  Boreham  v.  Byrne,  83  Cal.  23;  Good- 
win V.  Colorado  Mortgage  Inv.  Co.  of  Lond6n,  110  U.  S.  1;  Drake 
v.  Root,  2  Colo.  685;  Threat  v.  Moody,  87  Tenn.  143. 

119  See  Waples,  Homestead,  c.  22. 

(1131) 


§   499  REAL  PROPERTY.  [Ch.  33 

the  owner  join  in  or  consent  to  any  transfer  of  the  home- 
stead property,  has  been  previously  discussed.^ ^*^  Subject  to 
this  requirement,  the  owner  has  ordinarily  the  right  to  trans- 
fer the  homestead  to  the  same  extent  as  other  property  ;^^* 
and  creditors  cannot  object  to  such  action  as  being  fraudu- 
lent as  against  them,  since  they  have  no  rights  against  the 
homestead  property  in  any  case.^^^  Likewise,  the  land  may, 
in  the  absence  of  express  prohibition,  be  mortgaged  by  the 
owner,  with  the  joinder  or  consent  of  his  wife.-^^^  By  stat- 
ute, occasionally,  however,  there  is  a  restriction  upon  the 
right  to  transfer  or  mortgage  the  homestead.  In  one  state, 
for  instance,  it  can  be  mortgaged  only  to  secure  the  purchase 
money  or  the  cost  of  improvements.^ ^^ 

120  Ante,  §  214. 

121  Waples,  Homestead,  469,  497.  See  Larson  v.  Reynolds,  13  Iowa, 
581,  81  Am.  Dec.  444;  Wea  Gas,  Coal  &  Oil  Co.  v.  Franklin  Land  Co., 
54  Kan.  533,  45  Am.  St.  Rep.  297;  Moran  v.  Clark,  30  W.  Va.  359,  8  Am. 
St.  Rep.  66;  Kendall  v.  Powers,  96  Mo.  142,  9  Am.  St.  Rep.  326;  Fish- 
back  V.  Lane,  36  111.  437;  Greenough  v.  Turner,  11  Gray  (Mass.) 
334;  Giles  v.  Miller,  36  Neb.  346,  38  Am.  St.  Rep.  730;  Ketchin  v. 
McCarley,  26  S.  C.  1,  4  Am.  St.  Rep.  674;  Barton  v.  Drake,  21  Minn. 
299;  Rogers  v.  Adams,  66  Ala.  600;  Brame  v.  Craig,  12  Bush  (Ky.) 
404;  Astugueville  v.  Loustaunau,  61  Tex.  233. 

122  Bank  of  Versailles  v.  Guthrey,  127  Mo.  189,  48  Am.  St.  Rep. 
621;  Roberts  v.  Robinson,  49  Neb.  717,  59  Am.  St.  Rep.  567;  Tong  v. 
Eifort,  80  Ky.  152;  Winter  v.  Ritchie,  57  Kan.  212,  57  Am.  St.  Rep. 
331;  Castle  v.  Palmer,  6  Allen  (Mass.)  401;  Smith  v.  Rumsey,  33 
Mich.  183;  Williams  v.  Watkins,  92  Va.  680. 

i23Preiss  v.  Campbell,  59  Ala.  635;  Low  v.  Anderson,  41  Iowa, 
476;  Jamison  v.  Bancroft,  20  Kan.  169;  Hand  v.  Winn,  52  Miss.  784; 
Grimes  v.  Portman,  99  Mo.  229;  Moran  v.  Clark,  30  W.  Va.  358,  8 
Am.  St.  Rep.  66. 

124  Const.  Tex.  art.  16,  §  50.  See  Equitable  Mortgage  Co.  v.  Nor- 
ton, 71  Tex.  683.  And  in  Georgia  any  mortgage  is,  it  seems,  invalid, 
while  a  sale  is  valid  only  if  approved  by  the  court.  Planters'  Loan 
&  Sav.  Bank  v.  Dickinson,  83  Ga.  711.  The  prohibitions  formerly 
existing  in  Arkansas  and  California  against  the  alienation  of  the 
homestead  property  were  repealed.  Peterson  v.  Hornblower,  33  Cal. 
266;  Brown  v.  Watson,  41  Ark.  309. 
(1132) 


Ch.   33]  RESTRICTIONS  ON  TRANSFER.  §   499 

In  most  of  the  states  the  conveyance  of  the  homestead 
premises,  though  it  involves  an  abandonment  of  the  home- 
stead, does  not  give  a  right  to  enforce  against  the  land  in 
the  hands  of  the  purchaser  a  jndgTiient  which  was  obtained 
against  the  owner  of  the  homestead  during  his  occupancy.^  ^^ 

The  statute  sometimes  authorizes  the  proceeds  of  the  sale 
of  homestead  premises  to  be  invested  in  another  homestead, 
which  will  be  exempt  from  all  the  debts  from  which  the  pre- 
vious homestead  was  exempt,^  ^®  and  occasionally  the  pro- 
ceeds of  sale,  pending  such  reinvestment,  are  exempt. ^^'^ 
The  proceeds  of  a  sale  of  the  premises  under  order  of  court 
or  by  judicial  process  are  also  usually  exempt  to  the  same 
extent  as  the  premises,^  ^^  and  the  proceeds  of  insurance  on 
the  property  are,  in  some  states,  exempt.^^^ 

125  Cummings  v.  Long,  16  Iowa,  41,  85  Am.  Dec.  502;  Seamans  v. 
Carter,  15  Wis.  548,  82  Am.  Dec.  696;  Elwell  v.  Hitchcock,  41  Kan. 
130;  Ketchin  v.  McCarley,  26  S.  C.  1,  4  Am.  St.  Rep.  674;  Giles  v. 
Miller,  36  Neb.  346,  38  Am.  St.  Rep.  730;  Macke  v.  Byrd,  131  Mo.  682, 
52  Am.  St.  Rep.  649;  Vanstory  v.  Thornton,  112  N.  C.  196,  34  Am.  St. 
Rep.  483;  Jones  v.  Britton,  102  N.  C.  166;  Bonds  v.  Strickland,  60 
Ga.  624;  Holland  v.  Kreider,  86  Mo.  59;  Black  v.  Epperson,  40  Tex. 
162.  Contra,  Denis  v.  Gayle,  40  La.  Ann.  291;  Whitworth  v.  Lyons, 
39  Miss.  468.  And  see  the  able  dissenting  opinion  in  Vanstory  v. 
Thornton,  supra. 

126  Macke  v.  Byrd,  131  Mo.  682,  52  Am.  St.  Rep.  649;  Watson  v. 
Saxer,  102  111.  585;  Smith  v.  Gore,  23  Kan.  488,  33  Am.  Rep.  188; 
Cooper  V.  Arnett,  95  Ky.  603. 

The  same  effect  frequently  follows  when  there  is  a  direct  exchange 
of  the  old  homestead  for  a  new  one.  Creath  v.  Dale,  84  Mo.  349; 
Mann  v.  Corrington,  93  Iowa,  108,  57  Am.  St.  Rep.  256;  Schneider  v. 
Bray,  59  Tex.  668. 

127  Smith  V.  Gore,  23  Kan.  488,  33  Am.  Rep.  188;  Schuttloffel  v. 
Collins,  98  Iowa,  576,  60  Am.  St.  Rep.  216;  Hewett  v.  Allen,  54  Wis. 
583;  Prugh  v.  Portsmouth  Sav.  Bank,  48  Neb.  414. 

128  Swandale  v.  Swandale,  25  S.  C.  389;  Keyes  v.  Rines,  37  Vt.  260, 
86  Am.  Dec.  707;  Jackson  v.  Reid,  32  Ohio  St.  443;  Simpson  v.  Biffle, 
63  Ark.  289. 

129  Culbertson  v.  Cox,  29  Minn.  309,  43  Am.  Rep.  204;  Cameron  v. 
Fay,  55  Tex.  58;  Houghton  v.  Lee,  50  Cal.  101.    Contra,  Smith  v.  Rat- 

(1133) 


§   499  REAL  PROPERTY.  [Ch.   33 

The  statute  does  not  usually  prohibit  a  testamentary  dis- 
position of  the  homestead  premises  bj  the  owner,  but  such 
right  is  frequently  restricted  by  the  provisions  giving  the 
surviving  consort  and  children  certain  rights  in  the  land. 
Occasionally,  but  not  frequently,  a  prohibition  in  general 
terms  of  a  transfer  or  alienation  by  the  husband  alone  has 
been  held  to  apply  to  a  transfer  by  will.-'^^*^ 

Loss  of  rights  by  abandonment. 


The  right  to  the  homestead  exemption  in  particular  land 
is  lost  by  the  abandonment  of  the  land  as  a  place  of  resi- 
dence.^ ^^  But  to  constitute  an  abandonment,  a  removal 
from  the  property  must  be  permanent,  without  an  intention 
to  return.^ ^^  An  abandonment  is  not  necessarily  shown  by 
the  fact  that  the  owner  leases  the  homestead  property  to  a 
tenant,  provided  the  owner's  absence  therefrom  is  but  tem- 
porary.^^^ 

Waiver  of  rights. 

The  right  to  hold  land  exempt  from  forced  sale  for  debts 

cliff,  66  Miss.  683,  14  Am.  St.  Rep.  606;  Wooster  v.  Page,  54  N.  H. 
125,  20  Am.  Rep.  128. 

130  Waples,  Homestead,  c.  14. 

131  Cabeen  v.  Mulligan,  37  111.  230,  87  Am.  Dec.  247;  Fyffe  v.  Beers, 
18  Iowa,  4,  85  Am.  Dec.  577;  Kaes  v.  Gross,  92  Mo.  648,  1  Am.  St. 
Rep.  767;  Shepherd  v.  Cassiday,  20  Tex.  26,  70  Am.  Dec.  372;  Foster 
V.  Leland,  141  Mass.  187;  Niehaus  v.  Faul,  43  Ohio  St.  63. 

132  Tumlinson  v.  Swinney,  22  Ark.  400,  76  Am.  Dec.  432;  Taylor 
V.  Boulware,  17  Tex.  74,  67  Am.  Dec.  642;  Kenley  v.  Hudelson,  99 
111.  493,  39  Am.  Rep.  31;  Kaes  v.  Gross,  92  Mo.  647,  1  Am.  St.  Rep. 
767;  McDermott  v.  Kernan,  72  Wis.  268,  7  Am.  St.  Rep.  864;  Boot  v. 
Brewster,  75  Iowa,  631,  9  Am.  St.  Rep.  515;  Edwards  v.  Reid,  39  Neb. 
645,  42  Am.  St.  Rep.  607;  Central  Kentucky  Lunatic  Asylum  v.  Cra- 
ven, 98  Ky.  105,  56  Am.  St.  Rep.  323. 

133  Stewart  v.  Brand,  23  Iowa,  477;  Dulanty  v.  Pynchon,  6  Allen 
(Mass.)  510;  Wiggins  v.  Chance,  54  111.  175;  Herrick  v.  Graves,  16 
Wis.  163;  Earll  v.  Earll,  60  Mich.  30;  Wetz  v.  Beard,  12  Ohio  St.  431. 
(1134) 


Ch.    33]  RESTRICTIONS  ON  TRANSFER.  §   500 

may,  as  before  stated,  be  in  effect  waived  as  to  a  debt  secured 
by  mortgage  on  the  land.  Under  the  statutes  or  decisions  of 
a  number  of  courts,  moreover,  the  owner  of  land  may,  by 
agreement,  waive  the  right  of  exemption  as  regards  a  par- 
ticular debt,  provided,  usually,  the  waiver  be  in  writing, 
and  the  wife  join  therein.^  ^*  In  some  states,  however,  one 
cannot  agree  not  to  assert  the  right  as  against  a  particular 
debt,-^^^  Whether  the  owner  impliedly  waives  his  right  of 
exemption  by  failure  to  assert  it  at  the  time  of  an  attempted 
sale  of  the  land  at  the  instance  of  creditors  is  a  question  on 
which  the  decisions  are  in  direct  conflict.-^^^ 

■  Federal  homestead  exemption. 

The  acquisition  of  public  lands  by  individuals  under  the 
United  States  homestead  law  has  been  before  referred  to. 
The  purpose  of  this  law  is  primarily  entirely  different  from 
the  state  homestead  exemption  laws,  though  they  bear  sim- 
ilar names.  There  is,  however,  one  point  of  resemblance, 
in  that  the  statute  providing  for  the  acquisition  of  public 
land  by  one  establishing  a  home  thereon  declares  that  the 
land  so  acquired  shall  be  exempt  from  liability  to  forced 
sale  for  debts  incurred  previous  to  the  issuance  of  a  patent 
therefor.^^'^ 

§  500.    Restrictions  in  creation  of  estate.— Estate  in  fee  simple. 

A  legal  estate  in  fee  simple  cannot,  by  the  terms  of  its 
creation,  be  made  subject  to  a  provision  that  it  shall  not  be 

i34Crum  V.  Sawyer,  132  111.  443;  Foley  v.  Cooper,  43  Iowa,  376; 
Littlejohn  v.  Egerton,  76  N.  C.  468;  Crout  v.  Sauter,  13  Bush  (Ky.) 
442;  Dye  v.  Mann,  10  Mich.  291;  Ferguson  v.  Kumler,  25  Minn.  183. 

135  Terrell  v.  Hurst,  76  Ala.  588;  Tanner  v.  Mutual  Benefit  Build- 
ing Ass'n,  95  Ga.  528. 

i36Waples,  Homestead,  729, 

isTRev.  St.  U.  S.  §  2296. 

(1135) 


§   500  REAL  PROPERTY.  [Qh.    33 

transferred  by  its  owner;  and  this  is  the  case,  whether  such 
a  provision  takes  the  form  of  a  condition,  special  limita- 
tion, or  executory  limitation,  terminating  the  estate  upon 
an  attempted  transfer,^  ^^  or  the  form  merely  of  a  prohibi- 
tion of  such  a  transfer.^ ^^  A  provision  is  also  void,  it 
seems,  which  undertakes  to  restrict  the  right  of  transfer  in 
one  particular  way,  as  by  preventing  the  disposition  of  the 
property  inter  vivos,  or  by  mortgage,  or  by  will.^^*'  As  to 
the  validity  of  a  condition  that  the  tenant  of  a  fee-simple 
estate  shall  not  transfer  it  to  a  particular  person  or  persons, 
the  authorities  are  in  conflict. ^^^  A  condition  that  he  can 
transfer  it  only  to  a  certain  class  of  persons  is,  by  the  weight 
of  authority,  invalid.^ ^^     The  fact  that  a  restriction  upon. 

issLitt.  §  360;  Co.  Litt.  223a;  2  Jarman,  Wills,  855;  In  re  Rosher, 
26  Ch.  Div.  801,  6  Gray's  Cas.  62;  In  re  Dugdale,  38  Ch.  Div.  176,  6 
Gray's  Cas.  73;  Potter  v.  Couch,  141  U.  S.  296;  Winsor  v.  Mills,  157 
Mass.  362;  Hardy  v.  Galloway,  111  N.  C.  519,  32  Am.  St.  Rep.  828; 
Turley  v.  Massengill,  7  Lea  (Tenn.)  353;  Mutual  Benefit  Life  Ins.  Co. 
V.  Grace  Church,  53  N.  J.  Eq.  413. 

So,  a  provision  imposing  a  penalty  to  be  charged  on  the  land,  in 
case  of  a  transfer  of  a  fee  simple,  is  invalid.  De  Peyster  v.  Michael, 
6  N.  Y.  467;  In  re  Rosher,  26  Ch.  Div.  806,  6  Gray's  Cas.  62.  As  is  a 
similar  provision  in  the  case  of  a  fee  tail.  King  v.  Burchell,  Amb. 
379,  6  Gray's  Cas.  31;  Gray,  Restraints  Alien.  Prop.  §  25. 

139  Gray,  Restraints  Alien.  Prop.  §§  105,  113;  Murray  v.  Green,  64 
Cal.  363;  Winsor  v.  Mills,  157  Mass.  362;  Oxley  v.  Lane,  35  N.  Y. 
340;  Mandlebaum  v.  McDonell,  29  Mich.  78,  18  Am.  Rep.  61;  McWil- 
liams  V.  Nisly,  2  Serg.  &  R.  (Pa.)  507,  7  Am.  Dec.  654. 

lio  In  re  Rosher,  26  Ch.  Div.  801,  6  Gray's  Cas.  62;  Ware  v.  Cann, 
10  Barn.  &  C.  433,  6  Gray's  Cas.  42.  See  Gushing  v.  Spalding,  164 
Mass.  287;  Gray,  Restraints  Alien.  Prop.  §  55  et  seq. 

141  That  such  a  condition  is  valid,  see  Litt.  §  361;  Co.  Litt.  223; 
Winsor  v.  Mills,  157  Mass.  362  (dictum);  Cowell  v.  Colorado  Springs 
Co.,  100  U.  S.  55  (dictum).  That  it  is  invalid,  see  4  Kent's  Comm. 
131;  Barnard's  Lessee  v.  Bailey,  2  Har.  (Del.)  56;  Williams  v.  Jones, 
2  Swan  (Tenn.)  620.     See  Good  v.  Fichthorn,  144  Pa.  St.  287. 

i42Attwater  v.  Attwater,  18  Beav.  330,  6  Gray's  Cas.  46;  In  re 
Rosher,  26  Ch.  Div.  801,  6  Gray's  Cas.  62;  Anderson  v.  Gary,  36 
Ohio  St.  506,  6  Gray's  Cas.  86;  Schermerhorn  v.  Negus,  1  Denio  (N. 
(1136) 


Ch.   33]  RESTRICTIONS  ON  TRANSFER.  §   500 

the  power  of  alienating  a  fee  simple  is  to  endure  for  a  lim- 
ited time  only  does  not,  by  the  weight  of  authority,  render 
the  restriction  valid  if  the  estate  in  fee  simple  is  vested.^'*^ 
If,  however,  the  interest  is  not  vested,  but  is  contingent  upon 
the  happening  of  a  certain  event, — that  is,  if  it  is  merely 
an  executory  interest  or  contingent  remainder, — the  fact  that, 
in  addition  to  the  happening  of  such  event,  the  nonaliena- 
tion  of  the  interest  is  a  condition  precedent  to  the  vesting, 
.such  provision  against  alienation  imtil  the  time  of  vesting 
is  valid.^^^ 

The  rule  invalidating  a  provision  in  connection  with  a 
legal  fee-simple  estate,  restricting  the  right  of  transfer,  ap- 
plies to  a  provision  against  involuntary  as  well  as  voluntary 
transfer,  as  in  the  case  of  a  provision  terminating  the  estate 
in  case  of  the  bankruptcy  of  the  tenant,  or  a  sale  under  a 
judgment  against  him,  or  merely  providing  that  it  shall  not 
be  liable  for  debts.^'*^ 

Y.)  448.  See  Morse  v.  Blood,  68  Minn.  442.  This  view  is  approved 
by  Gray,  Restraints  Alien.  Prop.  §  41.  Contra,  Doe  d.  Gill  v.  Pearson, 
6  East,  173,  6  Gray's  Cas.  37;  In  re  Macleay,  L.  R.  20  Eq.  186,  6  Gray's 
Cas.  53. 

"s  Mandlebaum  v.  McDonell,  29  Mich.  78,  18  Am.  Rep.  61;  In  re 
Rosher,  26  Ch.  Div.  801,  6  Gray's  Cas.  62;  Potter  v.  Couch,  141  U.  S. 
296;  Anderson  v.  Gary,  36  Ohio  St.  506,  38  Am.  Rep.  602,  6  Gray's 
Cas.  86;  2  Jarman,  Wills,  860;  Gray,  Restraints  Alien.  Prop.  §§  47- 
54,  where  numerous  cases  containing  dicta  to  the  contrary  are  cited. 

In  Fowlkes  v.  Wagoner  (Tenn.  Ch.  App.)  46  S.  W.  586,  it  is  stated, 
in  the  course  of  an  elaborate  opinion,  that  such  a  restriction  is  valid 
if  the  estate  is  to  be  terminated  upon  the  making  of  the  alienation. 
In  that  case,  however,  there  was  no  provision  for  cesser.  There  are 
dicta  in  other  cases  to  the  same  effect.  See  Camp  v.  Cleary,  76  Va. 
140;  Bridge  v.  Ward,  35  Wis.  687. 

"iLarge's  Case,  2  Leon.  82,  3  Leon.  182;  Bank  of  State  v.  Forney, 
37  N.  C.  181;  Mandlebaum  v.  McDonell,  29  Mich.  78,  18  Am.  Rep.  61. 

1*5  In  re  Dugdale,  38  Ch.  Div.  176;  Van  Osdell  v.  Champion,  89 
Wis.  661;  Hahn  v.  Hutchinson,  159  Pa.  St.  133,  138;  McCleary  v. 
Ellis,  54  Iowa,  311,  37  Am.  Rep.  205. 

(1137) 
Real  Prop.— 72. 


§   500  REAL  PROPERTY.  [Ch.  33 

The  rule  that  an  estate  in  fee  simple  necessarily  involves 
the  right  of  transfer  has  also  usually  been  applied  to  the 
case  of  an  equitable  as  well  as  of  a  legal  estate  in  fee  simple, 
it  being  held  that  a  beneficiary,  or  all  the  beneficiaries,  of  a 
trust,  if  in  existence  and  sui  juris,  may  demand  a  conveyance 
of  the  legal  title  from  the  trustee,  and  thus  obtain  absolute 
control  over  the  property,  including  the  right  of  alienation  ;^^^ 
that  such  property  will  pass  to  an  assignee  in  bankruptcy  ;^^^ 
and  that  the  creditor  of  a  beneficiary  may  proceed  in  equity 
to  subject  the  equitable  interest  to  his  claim.^^^  It  has  re- 
cently, however,  been  held  in  this  country  that  the  trust  will 
not  be  so  terminated  by  compelling  a  conveyance  of  the  legal 
title,  if  this  is  plainly  not  in  accord  with  the  purpose  of  the 
creator  of  the  trust,^"*^  and  that,  on  the  same  principle,  the 
creditors  of  a  beneficiary  cannot  reach  the  corpus  of  the 
fund.i5« 

In  the  case  of  the  "equitable  separate  estate"  of  a  mar- 
ried woman,  though  she  has  a  fee-simple  interest  therein, 
she  may,  by  the  terms  of  the  settlement  upon  her,  be  re- 
strained from  transferring  the  property,  or  from  anticipat- 
ing the  income,  this  being  merely  an  application  by  the 
courts  to  her  fee-simple  interest  of  the  rule  previously  rec- 
ognized in  cases  in  which  she  had  merely  a  life  interest.^  ^^ 

146  Ante,  §  101. 

147  Sanford  v.  Lackland,  2  Dill.  6,  Fed.  Cas.  No.  12,312,  6  Gray's 
Cas.  138. 

i48Mebane  v.  Mebane,  39  N.  C.  131,  6  Gray's  Cas.  134;  Marshall's 
Trustee  v.  Rash,  87  Ky.  116;  Sears  v.  Choate,  146  Mass.  395.  So,  to 
the  effect  that  a  provision  that  the  equitable  estate  shall  not  be 
liable  for  the  debts  of  the  cestui  que  trust  is  invalid.  Taylor  v.  Har- 
well, 65  Ala.  1;  Turley  v.  Massengill,  7  Lea  (Tenn.)   353. 

i49Claflin  V.  Claflin,  149  Mass.  19,  6  Gray's  Cas.  141;  Cuthbert  v. 
Chauvet,  136  N.  Y.  326;  Gunn  v.  Brown,  63  Md.  96.    See  ante,  §  lOL 

isoGoe's  Estate,  146  Pa.  St.  431;  Weller  v.  Noffsinger,  57  Neb.  455. 

151  Raggett  V.  Meux,  1  Phillips,  627,  6  Gray's  Cas.  131;  In  re  Cur- 
rey,  32  Ch.  Div.  361;  Wells  v.  McCall,  64  Pa.  St,  207;  2  Perry,  Trusts. 
§  671;  Gray,  Restraints  Alien.  Prop.  §  125. 

(1138) 


Ch.  33]  RESTRICTIONS  ON  TRANSFER.  §   500 

The  principle  involved  in  the  above  decisions — that  land 
cannot  be  transferred  subject  to  provisions  restricting  the 
freedom  of  alienation  by  those  beneficially  entitled — is  some- 
times applied  as  a  ground  for  deciding  that  a  noncharitable 
trust  which,  by  its  terms,  may  continue  indefinitely,  owing 
to  the  absence  of  any  definite  cestui  que  trust,  who  may  call 
for  a  transfer  of  the  legal  estate,  or  may  alien  the  beneficial 
interest,  is  void  as  creating  a  perpetuity.^  ^^  In  other  cases, 
however,  such  a  trust  is  regarded  as  void,  owing,  not  to  the 
possibility  of  its  indefinite  continuance,  but  rather  because 
there  is  no  person  in  whose  favor  it  can  be  enforced  by  the 
courts.^  °* 

Estates  in  fee  tail. 

The  right  of  a  tenant  in  tail  to  transfer  the  land  by  a  com- 
mon recovery,  or  a  fine  levied  in  accordance  with  certain  stat- 
utes, and  so  to  bar  the  entail,  has  been  recognized  as  an  es- 
sential incident  of  the  estate,   of  which   it  cannot  be  de- 

152  Thompson  v.  Shakespear,  1  De  Gex,  F.  &  J.  399 ;  Cocks  v.  Man- 
ners, L.  R.  12  Eq.  574;  Yeap  Cheah  Neo  v.  Ong  Cheng  Neo,  L.  R.  6 
P.  C.  381;  Brannigan  v.  Murphy  [1896]  1  Ir.  418;  Piper  v.  Moulton, 
72  Me.  155;  Bates  v.  Bates,  134  Mass.  110;  Coit  v.  Comstock,  51 
Conn.  352;  Williams  v.  Herrick,  19  R.  I.  197;  Johnson  v.  Holifield, 
79  Ala.  423;  Pennoyer  v.  Wadhams,  20  Or.  274;  Detwiller  v.  Hart- 
man,  37  N.  J.  Eq.  347;  Hartson  v.  Elden,  50  N.  J.  Eq.  522;  Moore's 
Ex'r  V.  Moore,  50  N.  J.  Eq.  554;  Brown  v.  Esterhazy  (D.  C.)  25 
Wash.  Law  Rep.  478. 

This  view  is  sometimes  expressed  by  a  declaration  that  the  trust 
is  in  violation  of  the  "rule  against  perpetuities,"  a  use  of  the  latter 
phrase  calculated  to  create  confusion  between  this  and  the  rule 
against  remoteness.  See  article  by  John  C.  Gray,  Esq.,  in  15  Harv. 
Law  Rev.  509,  and  ante,  §  152. 

153  Morice  v.  Bishop  of  Durham,  9  Ves.  399,  10  Ves.  521;  Chamber- 
lain v.  Stearns,  111  Mass.  267;  Adye  v.  Smith,  44  Conn.  60;  Holland 
V.  Alcock,  108  N.  Y.  312;  Lewin,  Trusts,  139;  Perry,  Trusts,  §§  116, 
711.  As  to  the  application  of  this  requirement  of  definiteness  in 
the  case  of  a  charity,  see  ante,  §  49. 

(1139) 


§   500  REAL  PROPERTY.  [Ch.   3S 

prived  by  any  provision  in  the  instrument  creating  it;^^^ 
and  the  statutory  right  of  barring  the  entail  by  a  conveyance 
no  doubt  stands  upon  the  same  footing. 

Estates  for  life. 


In  the  case  of  a  legal  or  equitable  estate  for  life,  a  con- 
dition or  limitation  which  terminates  the  estate  upon  its 
attempted  transfer  by  him,  or  upon  its  involuntary  trans- 
fer away  from  him  on  behalf  of  his  creditors,  as  upon  his 
bankruptcy,  or  upon  a  sale  under  a  judgment,  is  valid,^^^ 
except  when  the  condition  or  limitation  is  created  in  a  set- 
tlement made  by  himself,  at  least  as  regards  the  involuntary 
alienation  of  the  property.-^ '^^ 

A  provision  attached  to  the  creation  of  a  legal  estate  for 
life,  not  that  it  shall  terminate  upon  an  attempt  to  transfer 
it,  but  declaring  in  effect  that  such  an  attempt,  whether 
made  by  the  life  tenant  himself,  or  by  or  in  behalf  of  his 
creditors,  shall  be  utterly  nugatory,  is  invalid.^ ^' 

In  the  case  of  an  equitable,  as  distinct  from  a  legal,  es- 
tate for  life,  it  has  been  held  in  many  states,  under  the  doc- 
trine of  "spendthrift  trusts,"  in  opposition  to  the  well-set- 

15-t  portington's  Case,  10  Coke,  35b;  Gray,  Restraints  Alien.  Prop. 
§  77;  Stansbury  v.  Hubner,  73  Md.  228. 

155  Gray,  Restraints  Alien.  Prop.  §  78  et  seq.;  Lockyer  v.  Savage, 
2  Strange,  947,  6  Gray's  Cas.  91;  Rochford  v.  Hackman,  9  Hare,  475, 
6  Gray's  Cas.  108;  Nichols  v.  Eaton,  91  U.  S.  716,  6  Gray's  Cas.  171; 
Jackson  v.  Groat,  7  Cow.  (N.  Y.)  285;  Bull  v.  Kentucky  Nat.  Bank, 
90  Ky.  452. 

156  That  is,  a  man  cannot  settle  his  own  property  on  himself,  so 
that,  when  he  becomes  bankrupt,  or  when  his  creditors  otherwise 
take  measures  to  reach  the  property,  it  will  pass  to  another  person. 
On  the  question  whether  he  can  settle  property  on  himself  for  life, 
with  a  provision  that  his  interest  shall  terminate  if  he  attempts  to 
transfer  it,  the  decisions  are  not  in  accord.  See  Gray,  Restraints 
Alien.  Prop.  §§  90-100. 

157  Gray,  Restraints  Alien.  Prop.  §  134;  Wellington  v.  Janvrin,  60 
N.  H.  174;  Bridge  v.  Ward,  35  Wis.  687;  McCormick  Harvesting 
Mach.  Co.  V.  Gates,  75  Iowa,  343;  Todd  v.  Sawyer,  147  Mass.  570; 
Hahn  v.  Hutchinson,  159  Pa.  St.  133. 

(1140) 


Ch.   33J  RESTRICTIONS  ON  TRANSFER.  g    50O 

tied  rules  of  tlie  English  courts,  as  well  as  in  opposition  to 
some  decisions  and  dicta  in  this  country/^*  that  property 
may  be  settled  in  trust  for  a  person  for  life,  without  any 
power  in  him  to  alienate  it  or  anticipate  the  income,  and 
free  from  liability  for  his  debts.^^^  But  even  in  the  states 
where  this  view  obtains,  a  person  cannot  settle  his  own  prop- 
erty in  trust  in  his  OAvn  favor,  so  that  it  will  be  exempt  from 
the  claims  of  his  creditors,  while  he  retains  the  enjoyment  of 
the  income.^  ^^ 

The  equitable  separate  estate  of  a  married  woman,  both 
in  England  and  in  this  country,  may,  by  the  terms  of  the 
settlement  upon  her,  be  enjoyed  by  her,  so  far  as  regards 
the  income,  without  the  power  of  alienating  the  corpus 
of  the  fund,  or  of  anticipating  the  income,  and  free  from  the 
claims  of  creditors,  this  relaxation  of  the  ordinary  rule  be- 
ing based  on  the  theory  that,  since  the  separate  estate  is  the 
creature  of  equity,  and  otherwise  the  wife  has,  apart  from 
modern  statutes,  no  power  of  alienation,  the  allowance  by 
equity  of  a  modification  of  such  power  is  merely  a  partial  re- 
turn to  the  common-law  view  of  a  married  woman.^°^ 

158  Brandon  v.  Robinson,  1  Rose,  197,  6  Gray's  Gas,  145;  Barton  v. 
Briscoe,  Jac.  603,  G  Gray's  Gas.  150;  Graves  v.  Dolpliin,  1  Sim.  66,  6 
Gray's  Gas.  152;  Tillingliast  v.  Bradford,  5  R.  I.  205,  6  Gray's  Gas. 
169;  Heath  v.  Bishop,  4  Rich.  Eq.  (S.  G.)  46;  Bailie  v.  McWhorter, 
56  Ga.  183;  Robertson  v.  Johnston,  36  Ala.  197. 

159  Fisher  v.  Taylor,  2  Rawle  (Pa.)  33,  6  Gray's  Gas.  166;  Over- 
man's Appeal,  88  Pa.  St.  276,  6  Gray's  Gas.  180;  Nichols  v.  Eaton,  91 
U.  S.  716,  6  Gray's  Gas.  171;  Broadway  Nat.  Bank  v.  Adams,  133 
Mass.  170,  6  Gray's  Gas.  187;  Steib  v.  Whitehead,  111  111.  247;  Lam- 
pert  V.  Haydel,  96  Mo.  439;  Roberts  v.  Stevens,  84  Me.  325;  Leigh  v. 
Harrison,  69  Miss.  923;  Smith  v.  Towers,  69  Md.  77;  Weller  v.  Noff- 
singer,  57  Neb.  455;  Barnes  v.  Dow,  59  Vt.  530. 

100  Pacific  Nat.  Bank  v.  Windram,  133  Mass.  175.  6  Gray's  Gas. 
190;  Jackson  v.  Von  Zedlitz,  136  Mass.  342;  Mackason's  Appeal,  42 
Pa.  St.  330;  Ghormley  v.  Smith,  139  Pa.  St.  584;  Warner  v.  Rice,  66 
Md.  436.  In  many  states  there  is  an  express  statutory  provision  that 
any  transfer  or  declaration  of  a  trust  for  the  benefit  of  the  grantor 
is  invalid  as  against  present  or  future  creditors.  1  Stimson's  Am. 
St.  Law,  §  4594. 

(lUl) 


§   500  REAL  PROPERTY.  [Ch.   33 

Estates  for  years. 


A  condition  or  limitation,  by  which  a  term  of  years  is,  in 
favor  of  the  landlord,  to  terminate  upon  voluntary  or  invol- 
Tintary  alienation  away  from  the  tenant,  is  valid  ;^^^  but  a 
lessee  cannot,  on  transferring  the  term,  impose  any  restric- 
tions upon  alienation  by  his  transferee,  since  this  would  be 
equivalent  to  imposing  a  restriction  upon  the  transfer  of  an 
absolute  interest  in  personalty.^  ^^  Furthermore,  as  in  the 
case  of  a  legal  life  estate,  a  provision  that  the  term  shall  not 
be  transferred,  but  that,  in  spite  of  any  such  attempt  by  the 
tenant  or  his  creditors,  it  shall  still  belong  to  him,  is,  it 
seems,  invalid.^  ^^ 

Statutory  provisions. 

In  New  York,  in  connection  with  the  restrictions  upon  the 
creation  of  express  trusts  in  land,  there  are  provisions  to 
the  effect  that  no  person  beneficially  interested  in  a  trust  for 
the  receipt  of  the  rents  and  profits  of  land  can  transfer  his 
interest,  but  that  the  surplus  of  such  rents  and  profits  be- 
yond the  sum  necessary  for  the  education  and  support  of 
the  beneficiary  shall  be  liable  in  equity  to  the  claims  of  cred- 
itors. The  provisions  have  been  the  subject  of  many  de^ 
cisions,  not  always  of  an  harmonious  character.^ ^^  In  some 
other  states  there  are  provisions  of  a  more  or  less  similar 
nature.^  ^^ 

181  Jackson  v.  Hobhouse,  2  Mer.  483,  6  Gray's  Gas.  147;  Stogdon  v. 
Lee  [1891]  1  Q.  B.  661;  Perry,  Trusts,  §§  670,  671;  2  Jarman,  Wills, 
779;  Gray,  Restraints  Alien.  Prop.  §§  270,  271.  The  restraining 
clause  ceases  to  have  any  effect  when  the  coverture  ends  by  the  hus- 
band's death.     Barton  v.  Briscoe,  Jac.  603,  6  Gray's  Cas.  150. 

162  Roe  d.  Hunter  v.  Galliers,  2  Term  R.  133,  6  Gray's  Cas.  92; 
Gray,  Restraints  Alien.  Prop.  §  46.     See  ante,  §  46. 

163  Co.  Litt.  223a;   Gray,  Restraints  Alien.  Prop.  §§  27,  102. 
i64Hobbs  v.  Smith,  15  Ohio  St.  419;  Gray,  Restraints  Alien.  Prop. 

§  278. 

165  See  Chaplin,  Exp.  Powers,  §  496,  705-710;  Gray, Restraints 
Alien.  Prop.  Appendix  I  A. 

166  Gray,  Restraints  Alien.  Prop.  Appendix  1  B. 

(1142) 


CHAPTER  XXXIV. 

PERSONAL  DISABILITIES  AS  TO  THE  TRANSFER  OF  LAND. 

§  501.  Married  women. 

502.  Infants. 

503.  Persons  mentally  incapacitated. 

504.  Corporations. 

505.  Aliens. 
505a.  Criminals. 

A  married  woman  may  transfer  land  by  a  conveyance  inter 
vivos,  in  which  her  husband  joins,  and,  in  some  states,  without 
his  joinder;  and  she  can  usually  transfer  it  by  will  without  his 
joinder.  The  common-law  rule  that  a  conveyance  directly  be- 
tween the  husband  and  wife  is  void  is  still  the  law  in  many 
states,  though  a  conveyance  from  him  to  her,  if  meritorious, 
is  upheld  in  equity. 

A  conveyance  inter  vivos  by  an  infant  may  usually  be 
avoided  by  him  after  arriving  at  majority,  or,  in  case  of  his 
death,  by  his  successors  in  interest.  A  conveyance  to  him 
may  likewise  be  avoided  by  him  after  arriving  at  majority. 
The  age  at  which  one  can  make  a  transfer  by  will  is  fixed  by 
statute  in  the  different  states. 

A  conveyance  by  one  mentally  incapacitated  is  by  some  de- 
cisions absolutely  void,  and,  by  others,  merely  voidable,  and  in 
some  states  it  is  valid  in  favor  of  an  innocent  purchaser  for 
value.    A  will  made  by  one  so  incapacitated  is  void. 

A  corporation  has  power  to  acquire  land  so  far  as  is  reason- 
ably incidental  to  the  purposes  of  its  creation,  and  may  trans- 
fer it  in  carrying  out  such  purposes. 

At  common  law,  while  an  alien  could  acquire  land  by  volun- 
tary conveyance,  and  hold  it  till  dispossessed  by  the  state,  he 
could  not  acquire  it  by  act  of  the  law,  as  by  descent,  nor  could 

(1143) 


§   501  REAL  PROPERTY.  [Ch.   34 

relationship  be  traced  from  or  through  him  for  the  purpose  of 
claiming  by  descent.  In  many  states  these  disabilities  have 
been  entirely  removed  by  statute,  and  in  other  states  consid- 
erably restricted. 

5  501.     Married  women. 

At  common  law,  a  married  woman  could  not  dispose  of 
her  land  by  her  sole  deed,  and  could  convey  it  even  in  con- 
junction Avitli  her  husband  only  by  the  levy  of  a  fine.^  In 
this  country  a  conveyance  jointly  with  her  husband,  acknowl- 
edged by  her  apart  from  him,  was,  however,  at  a  quite  early 
date,  substituted  for  a  conveyance  by  means  of  a  fine,^  and 
this  mode  of  conveyance  is  no  doubt  legal  in  all  the  states. 
In  most  states,  moreover,  at  the  present  day,  the  formality 
of  a  separate  acknowledgment  by  the  wife  is  dispensed  with, 
and  the  statutes  extending  her  rights  over  her  property  free 
from  any  control,  by  her  husband  have  in  some  states  given 
her  power  to  convey  her  lands  by  a  conveyance  executed  by 
her  alone,  without  the  joinder  of  her  husband.^  Such  right 
of  sole  transfer  has  for  many  years  been  recogTiized  by  courts 
•of  equity  in  connection  with  her  equitable  separate  estate, 
the  right  being,  however,  in  some  jurisdictions,  dependent 
xipon  an  express  grant  of  the  power  of  disposition  in  the  in- 
strument creating  the  estate.^ 

The  later  decisions,  under  the  influence,  more  or  less  di- 
rect, of  the  statutes  enlarging  the  powers  of  married  women, 

11  Bl.  Comm.  444;  2  Bl.  Comm.  293;  2  Kent's  Comm.  150;  Wil- 
liams, Real  Prop.  (18tli  Ed.)  288;  Albany  Fire  Ins.  Co.  v.  Bay,  4  N. 
Y.  9,  Finch's  Cas.  987. 

2  Schouler,  Domestic  Relations,  §  94 ;  Manchester  v.  Hough,  5 
Mason,  67,  Fed.  Cas.  No.  9,005;  Fowler  v.  Shearer,  7  Mass.  14;  Jack- 
son V.  Gilchrist,  15  Johns.  (N.  Y.)  89,  110. 

3  1  Stimson's  Am.  St.  Law,  §  6500,  where  the  statutory  provisions 
are  summarized. 

4  2  Story,  Eq.  Jur.  §  1392  et  seq.;  2  Pomeroy,  Eq.  Jur.  §§  1104, 
1105;  ante,  §  177. 

(1144) 


(3h.    34]  PERSONAL    DISABILITIES.  §   501 

uphold  conveyances  made  in  her  behalf  by  a  person  holding 
her  power  of  attorney;^  and  the  fact  that  her  attorney  is 
her  hnsband,  and  that  he  executes  the  conveyance  in  his 
own  right,  as  well  as  in  her  behalf,  does  not  render  it  in- 
valid.^ 

At  common  law  the  husband  could  dissent  from,  and  so 
invalidate,  a  transfer  made  to  the  wife/  The  modern  stat- 
utes excluding  the  husband's  rights  in  her  property,  and  his 
control  thereover,  are,  however,  inconsistent  with  the  exist- 
ence of  any  such  right  in  him. 

Conveyances  between  husband  and  wife. 

At  common  law,  a  conveyance  by  a  married  woman  di- 
rectly to  her  husband  was  void,  they  being  regarded  in  law 
as  but  one  person,  and  this  is  still  quite  generally  the  rule, 
in  spite  of  the  statutes  enlarging  her  property  rights.*     Un- 

5  In  siicti  cases,  the  power  of  attorney  has  usually  been  executed 
by  the  husband  jointly  with  the  wife.  Williams  v.  Paine,  169  U.  S. 
55;  Hull  V.  Glover,  126  111.  122;  Pulweiler  v.  Baugher,  15  Serg.  &  R. 
(Pa.)  45.  Except  when  the  husband  himself  is  appointed  attorney, 
as  to  which  see  cases  in  next  note. 

In  a  number  of  states  there  is  a  statutory  provision  authorizing 
the  wife  to  convey  by  attorney.  1  Stimson's  Am.  St.  Law,  §  6506. 
Contra,  to  the  effect  that  the  wife  cannot  convey  an  interest  in  land 
by  attorney,  see  Dawson  v.  Shirley,  6  Blackf.  (Ind.)  531;  King  v. 
Nutall,  7  Baxt.  (Tenn.)  221;  Batte  v.  McCaa,  44  Ark.  398;  Earle's 
Adm'rs  v.  Earle,  20  N.  J.  Law,  347;  Sumner  v.  Conant,  10  Vt.  9;  Mott 
v.  Smith,  16  Cal.  533. 

eWeisbrod  v.  Chicago  &  N.  W.  Ry.  Co.,  18  Wis,  35,  86  Am.  Dec. 
743;  Hunger  v.  Baldridge,  41  Kan.  236,  13  Am.  St.  Rep.  273;  Wron- 
kow  v.  Oakley,  133  N.  Y.  505,  28  Am.  St.  Rep.  661. 

TCo.  Litt.  3a;  2  Bl.  Comm.  293;  2  Kent's  Comm.  150;  Schouler, 
Domestic  Relations,  §  92;  Melvin  v.  Proprietors  of  Locks  &  Canals 
on  Merrimack  River,  16  Pick.  (Mass.)  161,  167;  Baxter  v.  Smith,  6 
Binn.  (Pa.)  427,  Finch's  Cas.  980. 

8  1  Roper,  Husb.  &  Wife,  53;  Brooks  v.  Kearns,  86  111.  547;  Preston 
V.  Fryer,  38  Md.  221;  Luntz  v.  Greve,  102  Ind.  173;  White  v.  Wager, 
25  N.  Y.  328;  Rico  v.  Brandenstein,  98  Cal.  465. 

(1145) 


§   501  REAL  PROPERTY.  [Ch.  34 

der  some  statutes,  however,  she  may  make  such  a  conveyance 
to  him  as  freely  as  to  other  persons,  the  statute  expressly 
giving  her  the  same  rights  to  alien  her  separate  property  as 
if  she  were  unmarried.*^  She  might,  even  at  common  law, 
convey  land  to  a  third  person,  to  be  conveyed  to  the  hus- 
band, in  the  absence  of  any  coercion  or  undue  influence  on 
the  husband's  part.^*^ 

At  common  law,  the  husband  could  not  convey  to  the  wife, 
and  this  rale  still  exists  in  some  jurisdictions.^^  In  others 
it  has  been  changed  by  the  modern  statutes  with  reference 
to  married  women.^-  Land  could,  however,  always  be  trans- 
ferred indirectly  from  the  husband  to  the  wife  by  making  use 
of  a  third  person  as  a  conduit  of  title,^^  and  a  conveyance 
directly  from  the  husband  to  the  wife,  not  in  fraud  of  his 
creditors,  and  otherwise  meritorious  in  character,  has  usu- 
ally been  upheld  in  equity  as  a  settlement  on  the  wife.^'* 

swells  V.  Caywood,  3  Colo.  487;  Savage  v.  Savage,  80  Me.  472; 
Robertson  v.  Robertson,  25  Iowa,  350. 

10  Scarborough  v.  Watklns,  9  B.  Mon.  (Ky.)  540,  50  Am.  Dec.  528; 
Gebb  V.  Rose,  40  Md.  387;  Jackson  v.  Stevens,  16  Johns.  (N.  Y.)  110; 
Jasper  v.  Maxwell,  16  N.  C.  357;  Garvin  v.  Ingram,  10  Rich.  Eq.  (S. 
C.)  130;  Shepperson  v.  Shepperson,  2  Grat.  (Va.)  501. 

"1  Bl.  Comm.  442;  2  Kent's  Comm.  129;  Shepard  v.  Shepard,  7 
Johns.  Ch.  (N.  Y.)  57;  Carrington  v.  Richardson,  79  Ala.  101;  Coates 
v.  Gerlach,  44  Pa.  St.  43;  Frissell  v.  Rozier,  19  Mo.  448;  Loomis  v. 
Brush,  36  Mich.  40;  Johnson  v.  Vandervort,  16  Neb.  144;  Humphrey 
V.  Spencer,  36  W.  Va.  11;  Wilder  v.  Brooks,  10  Minn.  50  (Gil.  32),  88 
Am.  Dec.  49;  Crooks  v.  Crooks,  34  Ohio  St.  610. 

i2Baygents  v.  Beard,  41  Miss.  531;  Walker  v.  Long,  109  N.  C.  510; 
Burdeno  v.  Amperse,  14  Mich.  91;  Booker  v.  Worrill,  55  Ga.  332. 

13  Jewell  V.  Porter,  31  N.  H.  34;  McMillan  v.  Cheeney,  30  Minn. 
519.  And  this  could  be  effected,  under  the  Statute  of  "Uses,  by  a 
conveyance  to  a  third  person  of  the  legal  title,  to  the  use  of  the  wife, 
the  use  being  executed  by  the  statute  in  the  latter.  1  Roper,  Husb. 
&  Wife,  53. 

"Moore  v.  Page,  111  U.  S.  117;  Jones  v.  Clifton,  101  U.  S.  228; 
Powe  v.  McLeod,  76  Ala.  418;  Shepard  v.  Shepard,  7  Johns.  Ch.  (N. 
Y.)  57,  11  Am.  Dec.  396;  Albright  v.  Albright,  70  Wis.  528;  Wilder  v. 
Brooks,  10  Minn.  50  (Gil.  32),  88  Am.  Dec.  49;  Vought's  Ex'rs  v. 
(1146) 


Ch.  34]  PERSONAL    DISABILITIES.  §   503 

Transfer  by  will. 

Under  the  English  Statute  of  Wills,  as  declared  by  a  stat- 
ute passed  two  years  later,  a  married  woman  had  no  power 
to  dispose  of  her  legal  interest  in  lands,^^  nor  could  she  so 
dispose  at  common  law  of  her  legal  personal  property,  since 
this  belonged  to  the  husband.^®  In  most  of  the  states  she 
can,  at  the  present  day,  dispose  of  her  real  or  personal  prop- 
erty by  will  without  her  husband's  consent,  as  if  sole,^'^  and 
she  can,  in  all  jurisdictions,  so  dispose  of  her  equitable  sep- 
arate estate.^  ^ 

§  502.    Infants. 

At  common  law,  any  person  under  the  age  of  twenty-one 
is  an  infant ;  but  by  statute  in  a  number  of  states  the  period 
of  infancy  is,  in  the  case  of  females,  reduced  to  eighteen 
years,  and,  in  some,  the  marriage  of  a  female  infant  gives 
her  the  powers  of  an  adult  married  woman.  ^^ 

A  transfer  inter  vivos  of  an  estate  or  interest  in  land  by 
an  infant  is  voidable,  though  not  void, — that  is,  it  is  effect- 
ive to  transfer  title  unless  it  is  repudiated  by  him  after  at- 
taining his  majority;"'^  and  it  may  be  repudiated  by  him, 

Vought,  50  N.  J.  Eq.  177;  Johnson  v.  Vandervort,  16  Neb.  144;  Wells 
V.  Wells,  35  Miss.  638;  Furrow  v.  Athey,  21  Neb.  671,  59  Am.  Rep. 
867;  Turner  v.  Shaw,  96  Mo.  22,  9  Am.  St.  Rep.  319;  Coates  v.  Ger- 
lach,  44  Pa.  St.  43;  Crooks  v.  Crooks,  34  Ohio  St.  610;  Humphrey  v. 
Spencer,  36  W.  Va.  11. 

15  34  &  35  Hen.  VIII.  c.  5,  §  14. 

16  1  Jarman,  Wills,  39,  Bigelow's  note. 

17  1  Stimson's  Am.  St.  Law,  §  6460;  1  Woerner,  Administration,  §  21. 

18  1  Jarman,  Wills,  41;  2  Perry,  Trusts,  §  668. 

19  1  Bl.  Comm.  463;  2  Kent's  Comm.  233;  1  Stimson's  Am.  St.  Law, 
§  6601. 

^0  Irvine  v.  Irvine,  9  Wall.  (U.  S.)  617;  Bool  v.  Mix,  17  Wend.  (N. 
Y.)  119,  31  Am.  Dec.  285;  Slaughter  v.  Cunningham,  24  Ala.  260,  60 
Am.  Dec.  463;  Davis  v.  Dudley,  70  Me.  236,  35  Am.  Rep.  318;  Gilles- 
pie V.  Bailey,  12  W.  Va.  70,  29  Am.  Rep.  445;  Green  v.  Wilding,  59 
Iowa,  679,  44  Am.  Rep.  696;   Logan  v.  Gardner,  136  Pa.  St.  588,  20 

(1147) 


§   502  REAL  PROPERTY.  [Ch.    34 

although  the  grantee  has  conveyed  to  a  bona  fide  purchaser 
without  notice."^  The  right  to  avoid  a  conveyance  made  by 
an  infant  does  not,  however,  extend  to  conveyances  made  by 
him  in  the  execution  of  a  trust,  or  as  the  holder  of  a  bare 
legal  title.^^  In  some  cases,  under  particular  circumstances, 
equity  has  held  the  grantor  estopped  to  assert  his  infancy  if 
he  induced  one  to  pay  a  consideration  for  the  land  by  false 
representations  as  to  his  age.^^ 

An  infant  married  woman  stands,  in  respect  to  her  right 
to  avoid  any  conveyance  made  by  her,  upon  the  same  footing 
as  any  other  infant,  and  her  disability  of  infancy  is  not  re- 
Am.  St.  Rep.  939;  Craig  v.  Van  Bebber,  100  Mo.  584,  18  Am.  St. 
Rep.  569,  and  note;  Englebert  v.  Troxell,  40  Neb.  195,  42  Am.  St. 
Rep.  665. 

Though  a  conveyance  of  land  by  an  infant  is  thus  subject  to  avoid- 
ance by  him,  a  binding  sale  and  conveyance  of  his  land  may,  as  be- 
fore stated,  in  most  jurisdictions,  be  effected  by  a  judicial  proceed- 
ing.    See  ante,  §  463. 

2iHarrod  v.  Myers,  21  Ark.  592,  76  Am.  Dec.  409;  Brantley  v. 
Wolf,  60  Miss.  420;  Jenkins  v.  Jenkins,  12  Iowa,  195;  Searcy  v. 
Hunter,  81  Tex.  644,  26  Am.  St.  Rep.  837;  Mustard  v.  Wohlford's 
Heirs,  15  Grat.  (Va.)  329,  340,  76  Am.  Dec.  209;  Sims  v.  Smith,  86 
Ind.  577;  McMorris  v.  Webb,  17  S.  C.  558,  43  Am.  Rep.  629. 

22  Tucker's  Lessee  v.  Moreland,  10  Pet.  (U.  S.)  58,  67;  Nordholt  v. 
Nordholt,  87  Cal.  552,  22  Am.  St.  Rep.  268;  Prouty  v.  Edgar,  6  Iowa, 
353;  Bridges  v.  Bidwell,  20  Neb.  185;  Starr  v.  Wright,  20  Ohio  St.  97; 
Elliott  v.  Horn,  10  Ala.  348,  44  Am.  Dec.  488. 

23  Hayes  v.  Parker,  41  N.  J.  Eq.  630;  Ferguson  v.  Bobo,  54  Miss. 
121;  Ryan  v.  Growney,  125  Mo.  474;  Schmitheimer  v.  Eiseman,  7 
Bush  (Ky.)  298;  Alt  v.  Graff,  65  Minn.  191;  Patterson  v.  Lawrence, 
90  111.  174;  1  Story,  Eq.  Jur.  §  385;  2  Pomeroy,  Eq.  Jur.  §  945.  See 
Thormaehlen  v.  Kaeppel,  86  Wis.  378;  Vogelsang  v.  Null,  67  Tex.  465. 
But  see  Sims  v.  Everhardt,  102  U.  S.  300;  Watson  v.  Billings,  38 
Ark.  278,  42  Am.  Rep.  1;  Wieland  v.  Kobick,  110  111.  16,  51  Am.  Rep. 
676;  Brown  v.  McCune,  5  Sandf.  (N.  Y.)  228;  Studwell  v.  Shapter, 
54  N.  Y.  249;  Merriam  v.  Cunningham,  11  Cush.  (Mass.)  40.  In 
some  states  the  statute  prohibits  the  disaffirmance  of  a  contract  by 
an  infant  if  the  action  of  the  other  party  in  entering  therein  was  in- 
duced by  the  infant's  misrepresentations.  1  Stimson's  Am.  St.  Law,  § 
6602(D). 

(1148) 


Ch.  34]  PERSONAL    DISABILITIES.  §   502 

moved  bj  a  statute  authorizing  married  women  to  make  con- 
veyances.^'* 

At  common  law,  an  infant's  conveyance  by  livery  of  seisin 
could  be  avoided  only  by  an  act  of  equal  solemnity,  such  as 
an  entry,  and  it  has  sometimes  been  stated  that  the  avoidance 
of  any  conveyance  must  be  by  an  act  of  equal  notoriety  with 
the  conveyance.-^  The  modern  view  generally  is,  however, 
that  any  act  indicative  of  an  intention  to  repudiate  the  con- 
veyance is  sufficient.^®  Accordingly,  an  avoidance  of  the 
conveyance  has  been  held  to  have  been  effected,  not  only  by 
an  entry  upon  the  land,^^  but  also  by  an  action  of  ejectment 
by  the  infant  to  recover  the  land,^^  a  suit  by  him  to  set  aside 
the  conveyance,-^  a  conveyance  to  another  person  inconsistent 
with  the  former  conveyance,^^  or  a  notice  to  his  grantee  of 

24  Watson  V.  Billings,  38  Ark.  278,  42  Am.  Rep.  1;  Law  v.  Long,  41 
Ind.  586;  Hoyt  v.  Swar,  53  111.  134;  Walsh  v.  Young,  110  Mass.  396; 
Sandford  v.  McLean,  3  Paige  (N.  Y.)  117,  23  Am.  Dec.  773;  McMorris 
V.  Webb,  17  S.  C.  558,  43  Am.  Rep.  629;  Epps  v.  Flowers,  101  N.  C. 
158;  Greenwood  v.  Coleman,  34  Ala.  150;  Hughes  v.  Watson,  10 
Ohio,  127. 

25  Jackson  v.  Burchin,  14  Johns.  (N.  Y.)  124;  Bool  v.  Mix,  17  Wend. 
(N.  Y.)  119,  31  Am.  Dec.  285;  Rogers  v.  Hurd,  4  Day  (Conn.)  57. 
See  Irvine  v.  Irvine,  9  Wall.  (U.  S.)  617. 

26  Drake's  Lessee  v.  Ramsay,  5  Ohio,  252 ;  Singer  Mfg.  Co.  v.  Lamb, 
81  Mo.  221;  State  v.  Plaisted,  43  N.  H.  413;  Long  v.  Williams,  74 
Ind.  115. 

27  Inhabitants  of  Worcester  v.  Eaton,  13  Mass.  371,  7  Am.  Dec.  155; 
Green  v.  Green,  69  N.  Y.  553,  25  Am.  Rep.  233. 

28  Craig  V.  Van  Bebber,  100  Mo.  584,  18  Am.  St.  Rep.  569;  Chad- 
bourne  V.  Rackliff,  30  Me.  354;  Cole  v.  Pennoyer,  14  111.  158;  Birch 
V.  Linton,  78  Va.  584,  49  Am.  Rep.  381. 

29  Watson  V.  Billings,  38  Ark.  278,  42  Am.  Rep.  1;  Tunison  v.  Cham- 
blin,  88  111.  378;  Gillespie  v.  Bailey,  12  W.  Va.  70,  89,  29  Am.  Rep. 
445. 

30  Tucker's  Lessee  v.  Moreland,  10  Pet.  (U.  S.)  58;  Corbett  v. 
Spencer,  63  Mich.  731;  Mustard  v.  Wohlford's  Heirs,  15  Grat.  (Va.) 
329,  76  Am.  Dec.  209;  Peterson  v.  Laik,  24  Mo.  541,  69  Am.  Dec.  441; 
State  V.  Plaisted,  43  N.  H.  413 ;  note  to  Craig  v.  Van  Bebber,  18  Am. 
St.  Rep.  665. 

(1149) 


§   502  REAL  PROPERTY.  [Ch.   34 

an  intention  to  disaffii-m  the  convejance.^^  The  conveyance 
cannot  be  avoided  by  the  infant  until  after  he  arrives  at 
the  age  of  majority.^^  If  he  dies  before  either  repudiating 
or  affirming  the  conveyance,  his  heirs  or  personal  representa- 
tives, V5^hichever  vt^ould  be  otherwise  entitled  to  the  land, 
may  repudiate  it.^^ 

If  the  infant,  after  arriving  at  majority,  affirms  the  con- 
veyance by  unequivocally  recognizing  it  as  valid,  he  is  there- 
after precluded  from  repudiating  it.^*  In  some  states, 
though  not  in  all,  the  fact  that  he  fails  to  repudiate  the  con- 
veyance within  a  reasonable  time  after  arriving  at  majority 
is  regarded  as  an  affirmance  ;^^  and,  in  any  state,  if  he  stands 

3iScranton  v.  Stewart,  52  Ind.  68;  Roberts  v.  Wiggin,  1  N.  H.  73, 
8  Am.  Dec.  38. 

32  Welch  V.  Bunce,  83  Ind.  382,  Finch's  Cas.  982;  Sims  v.  Ever- 
hardt,  102  U.  S.  300;  Tucker's  Lessee  v.  Moreland,  10  Pet.  (U.  S.) 
75;  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117;  Bool  v. 
Mix,  17  Wend.  (N.  Y.)  119,  31  Am.  Dec.  285;  Emmons  v.  Murray,  16 
N.  H.  385;  Shipley  v.  Bunn,  125  Mo.  445;  Harrod  v.  Myers,  21  Ark. 
592,  76  Am.  Dec.  409;  Zouch  v.  Parsons,  3  Burrows,  1794. 

33  Gillenwaters  v.  Campbell,  142  Ind.  529;  Austin  v.  Trustees  of 
Charlestown  Female  Seminary,  8  Mete.  (Mass.)  196,  41  Am.  Dec.  497; 
Bozeman  v.  Browning,  31  Ark.  364;  Illinois  Land  &  Loan  Co.  v. 
Bonner,  75  111.  315;  Singer  Mfg.  Co.  v.  Lamb,  81  Mo.  221. 

34  Emmons  v.  Murray,  16  N.  H.  385;  Allen  v.  Poole,  54  Miss.  323; 
Keegan  v.  Cox,  116  Mass.  289;  Lacy  v.  Pixler,  120  Mo.  383;  Davidson 
V.  Young,  38  111.  145;  Cox  v.  McGowan,  116  N.  C.  131. 

35Keil  V.  Healey,  84  111.  104,  25  Am.  Rep.  434;  Amey  v.  Cockey,  73 
Md.  297;  Brantley  v.  Wolf,  60  Miss.  420;  Sims  v.  Bardoner,  86  Ind. 
87,  44  Am.  Rep.  263;  Ward  v.  Laverty,  19  Neb.  429;  Bigelow  v.  Kin- 
ney, 3  Vt.  353,  21  Am.  Dec.  589;  Ferguson  v.  Houston,  E.  &  W.  T. 
Ry.  Co.,  73  Tex.  344;  Thormaehlen  v.  Kaeppel,  86  Wis.  378;  Goodnow 
V.  Empire  Lumber  Co.,  31  Minn.  468,  47  Am.  Rep.  798.  See  Dolph  v. 
Hand,  156  Pa.  St.  91.  Contra,  Sims  v.  Everhardt,  102  U.  S.  300; 
Eureka  Co.  v.  Edwards,  71  Ala.  248,  46  Am.  Rep.  314;  Davis  v.  Dud- 
ley, 70  Me.  236,  35  Am.  Rep.  318;  Peterson  v.  Laik,  24  Mo.  541,  69 
Am.  Dec.  441;  McMurray  v.  McMurray,  66  N.  Y.  175;  Birch  v.  Lin- 
ton, 78  Va.  584,  49  Am.  Rep.  381;  Donovan  v.  Ward,  100  Mich.  601; 
Emmons  v.  Murray,  16  N.  H.  385.    See  note  to  Craig  v.  Van  Bebber, 

(1150) 


Ch.    34]  PERSONAL    DISABILITIES.  §   502 

by,  after  arriving  at  majority,  without  asserting  any  claim, 
though  knowing  that  his  grantee  or  another  is  expending 
money  on  the  supposition  that  the  conveyance  is  valid,  he 
would  be  estopped  to  thereafter  deny  its  validity.^^  In  a 
few  states  there  is  a  statutory  provision  requiring  the  repudi- 
ation to  take  place  within  a  reasonable  time.^'^  In  no  state 
could  he  assert  any  right  to  the  land  as  against  one  who  had 
been  in  possession  thereof  under  his  conveyance  for  the  statu- 
tory period  of  limitation  after  he  became  sui  juris.^^  If  one 
is  under  the  disability  of  coverture  at  the  time  of  her  arrival 
at  the  age  of  majority,  she  cannot,  by  her  failure,  during  the 
continuance  of  her  coverture,  to  avoid  a  conveyance  made 
by  her  during  infancy,  be  regarded  as  affirming  it.^^ 

In  order  that  one  may  avoid  a  conveyance  made  during  in- 
fancy, it  is  not  necessary  that  he  return  the  consideration  re- 
ceived by  him  unless  he  still  has  the  specific  consideration  re- 
ceived, as  in  the  case  of  an  unpaid  purchase-money  note.^^ 

18  Am.  St.  Rep.  675,  for  full  citation  and  discussion  of  the  cases 
upon  this  point. 

36  Logan  V.  Gardner,  136  Pa.  St.  588,  20  Am.  St.  Rep.  939;  Davis 
v.  Dudley,  70  Me.  236,  35  Am.  Rep.  318;  Lacy  v.  Pixler,  120  Mo.  383; 
Dolph  V.  Hand,  156  Pa.  St.  91;  Wheaton  v.  East,  5  Yerg.  (Tenn.)  41, 
26  Am.  Dec.  251;  Sims  v.  Bardoner,  86  Ind.  87,  44  Am.  Rep.  263. 
Compare  Davidson  v.  Young,  38  111.  145. 

37  1  Stimson's  Am.  St.  Law,  §  6602(C). 

38  Wells  V.  Seixas  (C.  C.)  24  Fed.  82;  Bozeman  v.  Browning,  31 
Ark.  364;  Donovan  v.  Ward,  100  Mich.  601;  Wallace  v.  Latham,  52 
Miss.  291;  Hughes  v.  Watson,  10  Ohio,  127;  Sims  v.  Bardoner,  86 
Ind.  87,  44  Am.  Rep.  263. 

39  Sims  V.  Everhardt,  102  U.  S.  300;  Stull  v.  Harris,  51  Ark.  294; 
Wilson  V.  Branch,  77  Va.  65,  46  Am.  Rep.  709;  Sims  v.  Bardoner,  86 
Ind.  87,  44  Am.  Rep.  263;  Epps  v.  Flowers,  101  N.  C.  158. 

40  Green  v.  Green,  69  N.  Y.  553,  25  Am.  Rep.  233,  Finch's  Cas.  984; 
Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117;  Brantley  v. 
Wolf,  60  Miss.  420;  Manning  v.  Johnson,  26  Ala.  446,  62  Am.  Dec. 
732;  Craig  v.  Van  Bebber,  100  Mo.  584,  18  Am.  St.  Rep.  569;  Engle- 
bert  V.  Troxell,  40  Neb.  195,  42  Am.  St.  Rep.  665;  Stull  v.  Harris,  51 
Ark.  294.     But  see,  to  the  contrary,  Bingham  v.  Barley,  55  Tex.  281, 

(1151) 


§   503  REAL  PROPERTY.  [Ch.   34 

A  conveyance  to  an  infant  is  valid  nnless  repudiated  by 
him  within  a  reasonable  time  after  his  arrival  at  majority.^^ 

Transfer  by  will. 


The  English  Statnte  of  Wills,  with  its  explanatory  act 
passed  two  years  later,  excluded  persons  under  twenty-one 
years  of  age  from  those  authorized  to  transfer  lands  by  will, 
though  males  over  fourteen  and  females  over  twelve  could 
at  that  time  transfer  personalty.'*^  In  this  country,  the  stat- 
utes of  the  various  states  are  not  uniform  in  regard  to  the 
age  at  which  one  may  make  a  will,  a  distinction  sometimes 
existing  between  wills  of  real  and  personal  property  in  this 
regard,  and  sometimes  not,  and  the  required  age  of  a  female 
being  in  some  states  less  than  that  of  a  male.  In  a  majority 
of  the  states,  however,  a  testator  of  either  sex  must  be  twen- 
ty-one years  of  age.^^ 

§  503.     Persons  mentally  incapacitated. 

In  determining  whether  a  person  has  the  mental  capacity 
to  make  a  valid  and  binding  conveyance,  the  only  question 
is  whether  he  is  able  to  clearly  understand  the  nature  and 
consequences  of  the  conveyance,  and  the  fact  that  his  mental 
powers  are  impaired,  or  that  he  is  subject  to  a  delusion,  if 
this  is  not  such  as  to  influence  him  in  making  the  convey- 

40  Am.  Rep.  801;  Searcy  v.  Hunter,  81  Tex.  644,  26  Am.  St.  Rep.  837; 
Carr  v.  Clough,  26  N.  H.  280,  59  Am.  Dec.  345;  Hall  v.  Bntterfield,  59 
N.  H.  354,  47  Am.  Rep.  209. 

41  Cecil  V.  Salisbury,  2  Vern.  224;  Scanlan  v.  Wright,  13  Pick. 
(Mass.)  523,  25  Am.  Dec.  344;  Boody  v.  McKenney,  23  Me.  517;  Rob- 
bins  V.  Eaton,  10  N.  H.  561;  Henry  v.  Root,  33  N.  Y.  526;  Baker  v. 
Kennett,  54  Mo.  82;  Johnston  v.  Furnier,  69  Pa.  St.  449;  Ellis  v.  AI- 
ford,  64  Miss.  8. 

42 1  Jarman,  Wills,  33,  and  note. 

43  1  Stimson's  Am.  St.  Law,  §  2602;  1  Woerner,  Administration,  § 
20. 

(1152) 


Ch.   34]  PERSONAL    DISABILITIES.  §   503 

ance,  does  not  impair  its  validity.'*^  One  who,  at  the  time 
of  making  a  conveyance,  is  unable  to  understand  its  nature 
and  effect  by  reason  of  intoxication,  stands,  it  seems,  upon 
the  same  footing  in  this  regard  as  one  who  is  otherwise  men- 
tally incapacitated.^^ 

The  authorities  are  not  in  accord  as  to  the  effect  of  a  con- 
veyance intei'  vivos  by  a  person  mentally  incapacitated.  Ac- 
cording to  some  decisions,  such  a  conveyance  is,  like  that  of 
an  infant,  merely  voidable,^ *^  unless  a  guardian  has  been  ap- 
pointed for  the  grantor  and  his  property  after  judicial  in- 
quisition into  his  sanity,  in  which  case  the  conveyance  is 
regarded  as  absolutely  void."*^     By  other  decisions,  a  convey- 

44Buswell,  Insanity,  §§  390-393;  Burgess  v.  Pollock,  53  Iowa,  273, 
36  Am.  Rep.  218;  Doe  d.  Guest  v.  Beeson,  2  Houst.  (Del.)  246;  Lindsey 
V.  Lindsey,  50  111.  79,  99  Am.  Dec.  489;  Blakeley  v.  Blakeley,  33  N.  J. 
Eq.  502;  Stewart  v.  Flint,  59  Vt.  144;  Whittaker  v.  Southwest  Vir- 
ginia Improvement  Co.,  34  W.  Va.  217;  Dennett  v.  Dennett,  44  N.  H. 
531. 

45  See  Buswell,  Insanity,  §  393;  Shackelton  v.  Sebree,  86  111.  616; 
French's  Heirs  v.  French,  8  Ohio,  214,  31  Am.  Dec.  441;  Peck  v. 
Gary,  27  N.  Y.  9,  84  Am.  Dec.  220;  Dulany  v.  Green,  4  Har.  (Del.) 
285;  Warnock  v.  Campbell,  25  N.  J.  Eq.  485;  Harbison  v.  Lemon,  3 
Blackf.   (Ind.)  51,  23  Am.  Dec.  376. 

46Allis  V.  Billings,  6  Mete.  (Mass.)  415,  39  Am.  Dec.  744,  'Pinch's 
Cas.  994;  Riggan  v.  Green,  80  N.  C.  236,  30  Am.  Rep.  77;  Eaton  v. 
Eaton,  37  N.  J.  Law,  108,  18  Am.  Rep.  716;  Hovey  v.  Hobson,  53  Me. 
451;  Riley  v.  Carter,  76  Md.  581,  35  Am.  St.  Rep.  443;  Breckenridge's 
Heirs  v.  Ormsby,  1  J.  J.  Marsh.  (Ky.)  236;  Langley  v.  Langley,  45 
Ark.  392;  Nichol  v.  Thomas,  53  Ind.  42;  2  Bl.  Comm.  291;  2  Kent's 
Comm.  451.  But  even  when  this  view  is  adopted,  a  conveyance  by 
a  married  woman,  under  a  statute  requiring  the  joinder  of  her  hus- 
band, is  absolutely  void  if  he  is  insane  when  he  executes  it.  Leggate 
V.  Clark,  111  Mass.  308. 

47  Wait  V.  Maxwell,  5  Pick.  (Mass.)  217;  Hovey  v.  Hobson,  53  Me. 
451,  89  Am.  Dec.  705;  Thorpe  v.  Hanscom,  64  Minn.  201;  New  Eng- 
land Loan  &  Trust  Co.  v.  Spitler,  54  Kan.  560;  Imhoff  v.  Witmer's 
Adm'r,  31  Pa.  St.  243;  Griswold  v.  Butler,  3  Conn.  227;  Elston  v. 
Jasper,  45  Tex.  409.     But  see  Hunt  v.  Hunt,  13  N.  J.  Eq.  161. 

An  adjudication  merely  that  the  grantor  is  insane,  and  a  fit  subject 
for  custody  in  a  hospital  for  the  insane,  does  not  have  this  effect 

(1153) 
Real  Prop.— 73. 


§   503  REAL  PROPERTY.  [Ch.  34 

ance  by  one  of  unsound  mind  is  absolutely  void,^^  the  logical 
result  of  which  view  is  that  it  can  be  attacked  not  only  by  the 
grantor  and  persons  in  privity  with  him,  but  also  by  third 
persons  generally,  and,  further,  that  it  can  be  ratified  by 
the  grantor  only  by  making  another  conveyance  after  his 
restoration  to  sanity. 

In  states  where  the  conveyance  is  regarded  as  voidable 
only,  it  may  be  avoided  either  by  the  grantor  after  he  has 
reacquired  his  mental  capacity,  or  by  his  heirs  or  personal 
representatives  after  his  death.^^  By  ratifying  the  convey- 
ance when  mentally  capable  of  acting,  provided  it  is  not  re- 
garded as  absolutely  void,  the  grantor  precludes  any  subse- 
quent avoidance  thereof.^*^ 

According  to  j)erhaps  the  weight  of  authority,  one  cannot 
assert  the  invalidity  of  his  conveyance  by  reason  of  mental 
incapacity,  as  against  his  grantee  who  took  the  conveyance  in 

Dewey  v.  Allgire,  37  Neb.  6,  40  Am.  St.  Rep.  468;  Knox  v.  Haug,  48 
Minn.  58;  Leggate  v.  Clark,  111  Mass.  308. 

It  has  been  decided  that,  if  the  guardianship  has  been  in  effect 
abandoned,  the  grantor  having  recovered  his  sanity,  the  conveyance 
will  be  supported,  though  the  guardian  has  not  been  discharged  by 
judicial  action.  Thorpe  v.  Hanscom,  64  Minn.  201;  Elston  v.  Jasper, 
45  Tex.  409. 

48  Sullivan  v.  Flynn,  20  D.  C.  396;  Elder  v.  Schumacher,  18  Colo. 
433;  Farley  v.  Parker,  6  Or.  105;  German  Sav.  &  Loan  Soc.  v.  De 
Lashmutt  (C.  C.)  67  Fed.  399;  Van  Deusen  v.  Sweet,  51  N.  Y.  378; 
In  re  Desilver's  Estate,  5  Rawle  (Pa.)  Ill;  Dexter  v.  Hall,  15  Wall. 
(U.  S.)  9  (power  of  attorney);  Thompson  v.  Leach,  Comb.  468, 
Garth.  435.  A  distinction  has  been  taken  in  this  respect  between  a 
feoffment  and  a  conveyance  by  deed,  the  former  being  stated  to  be 
voidable  merely,  and  the  latter  to  be  absolutely  void.  See  the  three 
cases  last  cited. 

49  2  Bl.  Comm.  292;  Langley  v.  Langley,  45  Ark.  392;  Allis  v.  Bil- 
lings, 6  Mete.  (Mass.)  415,  39  Am.  Dec.  744,  Finch's  Cas.  994;  Brown 
v.  Freed,  43  Ind.  253;  Turner  v.  Rusk,  53  Md.  65;  Valpey  v.  Rea,  130 
Mass.  384;  Judge  of  Probate  v.  Stone,  44  N.  H.  593. 

50  Allis  V.  Billings,  6  Mete.  (Mass.)  415,  39  Am.  Dec.  744,  Finch's 
Cas.  944;  Arnold  v.  Richmond  Iron  Works,  1  Gray  (Mass.)  434; 
Eaton  V.  Eaton,  37  N.  J.  Law,  108,  18  Am.  Rep.  716. 

(1154) 


Ch.   34]  PERSONAL    DISABILITIES.  §   503 

the  reasonable  belief  that  the  g-rautor  was  mentally  capable, 
unless  such  grantee  is  placed  in  statu  quo  by  a  return  of  the 
consideration.^^  And,  on  the  same  theory,  it  has  been  held 
that  the  conveyance  cannot  be  avoided  as  against  a  hona  fide 
purchaser  from  the  grantee  for  value. '''^  By  other  authori- 
ties, however,  the  conveyance  may  be  avoided,  although  the 
grantee  acted  in  perfect  good  faith,^^  and  even  as  against  a 
hona  fide  purchaser  from  the  grantee  for  value,^^  and  the 
right  to  avoid  the  conveyance  is  not  regarded  as  dependent  on 
the  return  of  the  consideration, ^'^ 

A  conveyance  or  devise  may  be  made  to  a  person  wanting 
in  mental  caj^acity,  and  the  title  is  thereby  vested  in  him 
subject  to  his  right,  upon  regaining  his  faculties,  to  refuse 
to  accept  it.^^ 

siScanlan  v.  Cobb,  85  111.  296;  Odom  v.  Riddick,  104  N.  C.  515; 
Boyer  v.  Berryman,  123  Ind.  451;  Rusk  v.  Fenton,  14  Bush  (Ky.^ 
490,  29  Am.  Rep.  413;  Behrens  v.  McKenzie,  23  Iowa,  333;  Gribben  v. 
Maxwell,  34  Kan.  8,  55  Am.  Rep.  233;  Riggan  v.  Green,  80  N.  C.  236, 
30  Am.  Rep.  77;  Eaton  v.  Eaton,  37  N.  J.  Law,  108,  18  Am.  Rep.  716. 
And  see  Crawford  v.  Scovell,  94  Pa.  St.  48,  39  Am.  Rep.  766.  Such 
seems  to  be  the  English  rule.  Molton  v.  Camroux,  2  Exch.  487,  4 
Exch.  17;  Elliot  v.  Ince,  7  De  Gex,  M.  &  G.  475;  Wood  Ronton,  Luna- 
cy, 13. 

52  Odom  V.  Riddick,  104  N.  C.  515.  See  New  England  Loan  & 
Trust  Co.  V.  Spitler,  54  Kan.  560. 

53  Sullivan  v.  Flynn,  20  D.  C.  396;  Rogers  v.  Walker,  6  Pa.  St. 
371,  47  Am.  Dec.  470;  Gibson  v.  Soper,  6  Gray  (Mass.)  279,  66  Am. 
Dee.  414;  Dewey  v.  Allgire,  37  Neb.  6,  40  Am.  St.  Rep.  468. 

5*  German  Sav.  &  Loan  Soc.  v.  De  Lashmutt  (C.  C.)  67  Fed.  399; 
Hovey  v.  Hobson,  53  Me.  451,  89  Am.  Dec.  705;  Rogers  v.  Blackwell, 
49  Mich.  192;  Hull  v.  Louth,  109  Ind.  315,  58  Am.  Rep.  405;  Dewey 
V.  Allgire,  37  Neb.  6.  40  Am.  St.  Rep.  468;  Valentine  v.  Lunt,  51  Hun 
(N.  Y.)    544. 

55  Nichol  V.  Thomas,  53  Ind.  42;  Gibson  v.  Soper,  6  Gray  (Mass.) 
279,  66  Am.  Dec.  414;  Henry  v.  Fine,  23  Ark.  417;  Dewey  v.  Allgire, 
37  Neb.  6,  40  Am.  St.  Rep.  468;  Hovey  v.  Hobson,  53  Me.  451,  89  Am. 
Dec.  705. 

56  Co.  Litt.  §  2b;  2  Bl.  Comm.  291;  Concord  Bank  v.  Bellis,  10  Cush. 
(Mass.)  276;  Campbell  v.  Knhn,  45  Mich.  513,  40  Am.  Rep.  479. 

(1155) 


504  REAL  PROPERTY.  [Ch.  34 

—  Testamentary  capacity. 


The  mental  capacity  necessary  for  the  making  of  a  will 
has  been  the  subject  of  an  immense  number  of  decisions,  in 
which  the  subject  is  considered  with  reference  to  the  facts  of 
the  particular  case.  The  rule  now  quite  generally  approved 
in  this  respect  is  to  the  effect  that  it  is  sufficient  if  the  testa- 
tor knows  the  extent  and  value  of  his  property,  the  number 
and  names  of  the  persons  who  are  the  proper  objects  of  his 
bounty,  their  deserts  as  measured  by  their  conduct  towards 
him,  their  capacities  and  necessities,  and  he  has  sufficient 
memory  to  retain  these  facts  in  his  mind  until  the  execution 
of  the  will.  Accordingly,  the  fact  that  testator  was  subject 
to  insane  delusions  does  not  necessarily  show  incapacity  to 
make  a  will,  ^or  is  a  will  invalid  because,  at  the  time  of 
making  it,  the  testator  was  under  guardianship  as  an  insane 
person,  though  this  fact  usually,  if  not  always,  raises  a  pre- 
sumption of  insanity.^^ 

§  504.     Corporations. 

A  corporation  has,  in  the  absence  of  an  express  prohibition, 
the  same  power  as  a  private  individual  to  transfer  its  land, 
as  well  as  its  other  proj)erty,  provided  only  that  the  trans- 
fer is  for  an  object  consistent  with  the  jourposes  of  its  crea- 
tion.^* 

At  common  law,  a  corporation  has  power  to  acquire  such 
land  as  may  be  necessary  for  or  reasonably  incidental  to 

57 1  Woerner,  Administration,  §  23  et  seq.;  Page,  Wills,  §  97  et  seq.; 
Bigelow,  Wills,  72. 

5s  2  Kent's  Comm.  281;  1  Clark  &  M.  Corp.  §  152;  Barry  v.  Mer- 
chants' Exchange  Co.,  1  Sandf.  Ch.  (N.  Y.)  280,  Finch's  Cas.  998; 
Holmes  &  Griggs  Mfg.  Co.  v.  Holmes  &  Wessell  Metal  Co.,  127  N.  Y. 
252;  State  v.  Western  Irrigating  Canal  Co.,  40  Kan.  96,  10  Am.  St. 
Rep.  166;  Treadwell  v.  Salisbury  Mfg.  Co.,  7  Gray  (Mass.)  393,  66 
Am.  Dec.  490;  Levering  v.  Bimel,  146  Ind.  545;  Aurora  Agricultural 
&  Horticultural  Soc.  v.  Paddock,  80  111.  264,  Finch's  Cas.  1000. 

(1156) 


Ch.  34]  PERSONAL    DISABILITIES.  g   5U4 

carrying  out  the  purposes  of  its  creation. '"'^  This  principle 
is,  in  most  of  tlie  states,  confirmed  by  statutory  provision, 
while  in  a  few  states  there  seems  to  be  no  limit  upon  the 
power  to  acquire  land.^^ 

The  common-law  right  of  a  corporation  to  acquire  land  was 
greatly  circumscribed  by  the  enactment  of  the  various  stat- 
utes of  ''mortmain,"  which,  while  directed  chiefly  at  ecclesi- 
astical bodies,  applied  in  terms  to  all  corporations,  and  pro- 
hibited their  acquisition  of  land  without  license  from  the 
crown,  and,  during  certain  periods,  from  the  mesne  lord 
also.^^  These  statutes  seem  to  have  been  adopted  in  but 
one  state.*^^  There  are,  however,  in  a  number  of  states,  spe- 
cial statutory  restrictions  upon  the  power  of  religious  cor- 
porations to  acquire  and  hold  land,  and  the  United  States 
statutes  contain  a  provision  to  this  effect  applicable  to  cor- 
porations in  any  of  the  territories.*^^  In  a  few  states,  more- 
over, a  testamentary  provision  in  favor  of  a  religious  or 
charitable  body  is  invalid  if  in  excess  of  a  certain  amount, 
or  if  the  will  is  not  executed  a  certain  length  of  time  before 
the  testator's  death. ^^ 

Restrictions  as  to  the  quantity  of  land  which  a  corporation 
may  acquire,  or  the  purposes  for  which  it  may  acquire  the 
land,  do  not  usually  invalidate  a  transfer  to  the  corporation 
in  violation  thereof,  so  as  to  permit  the  transfer  to  be  ques- 
tioned by  any  private  person,  but  the  state  only  may  assert 
the  illegality  of  the  transfer,  and  consequenth^,  if  the  state 

59  1  Bl.  Comm.  478;  2  Kent's  Comm.  281;  1  Clark  &  M.  Corp.  §§ 
132,  138. 

60  2  Stimson's  Am.  St.  Law,  §  8204. 

61  See,  as  to  these  statutes,  2  Bl.  Comm.  268;  2  Kent's  Comm.  282. 

62  Pennsylvania.  See  Leazure  v.  Hillegas,  7  Serg.  &  R.  313;  2 
Kent's  Comm.  283. 

63  5  Thompson,  Corp.  §  5774.  See  Rev.  St.  U.  S.  §  1890;  In  re 
McGraw's  Estate,  111  N.  Y.  66;  Church  Extension  of  M.  E.  Church  v. 
Smith,  56  Md.  392. 

64  1  Stimson's  Am.  St.  Law,  §  2618. 

(1157) 


§  505  REAL  PROPERTY.  [Ch.  34 

fails  so  to  do,  the  corporation  may  retransfer  the  land  to 
another.*^^  Occasionally,  however,  it  has  been  decided  that 
a  transfer  by  will  to  a  corporation  stands  on  a  different  foot- 
ing in  this  respect  from  a  transfer  inter  vivos^,  and  that  such 
a  transfer  may  be  attacked  by  the  heirs  of  the  testator.^^ 

^  505.    Aliens. 

At  common  law,  an  alien  might  take  land  by  purchase, — 
that  is,  by  transfer  inte?-  vivos  or  devise,  and  hold  the  same 
until  a  forfeiture  in  favor  of  the  state  M^as  enforced  by  a 
proceeding  of  "office  found."^'^ 

An  alien  could  not,  at  common  law,  acquire  any  estate 
in  land  by  operation  of  law,  as  by  descent,*^^  or  under  the 
law  in  relation  to  dower  and  curtesy,^®  for  the  reason,  it 

65  1  Clark  &  M.  Corp.  §  228  et  seq.;  5  Thompson,  Corp.  §  5795  et 
seq.;  Jones  v.  Habersham,  107  U.  S.  174;  Farrington  v.  Putnam,  90 
Me.  405;  Hanson  v.  Little  Sisters  of  Poor  of  Baltimore,  79  Md.  434; 
Fayette  Land  Co.  v.  Louisville  &  N.  R.  Co.,  93  Va.  274;  Long  v. 
Georgia  Pac.  Ry.  Co.,  91  Ala.  519,  24  Am.  St.  Rep.  931.  But  see 
Wood  V.  Hammond,  16  R.  L  98. 

66  In  re  McGraw's  Estate,  111  N.  Y.  66;  House  of  Mercy  of  New 
York  v.  Davidson,  90  Tex.  529;  Gromie  v.  Home  Society,  3  Bush 
(Ky.)  865;  Wood  v.  Hammond,  16  R.  I.  98.  See  De  Camp  v.  Dobbins, 
31  N.  J.  Eq.  690;  Starkweather  v.  American  Bible  Soc,  72  111.  50. 

67  Co.  Litt.  2b,  42b;  1  Bl.  Comm.  371;  2  Bl.  Comm.  249,  274,  293;  3 
Bl.  Comm.  258;  2  Kent's  Comm.  54;  Doe  d.  Governeur's  Heirs  v. 
Robertson,  11  Wheat.  (U.  S.)  332;  Carlow  v.  Aultman,  28  Neb.  672; 
Scanlan  v.  Wright,  13  Pick.  (Mass.)  523,  25  Am.  Dec.  344,  Finch's 
Cas.  980;  Quigley  v.  Birdseye,  11  Mont.  439;  Wright  v.  Saddler,  20 
N.  Y.  320;  Sands  v.  Lynham,  27  Grat.  (Va.)  291,  21  Am.  Rep.  348; 
Bennett  v.  Hibbert,  88  Iowa,  154;  Doe  d.  Rouche  v.  Williamson,  25 
N.  C.  141.     Compare  Wunderle  v.  Wunderle,  144  111.  40. 

68  Litt.  §  198;  Co.  Litt.  42b;  2  Bl.  Comm.  249,  293,  and  Chitty's  note; 
Orr  v.  Hodgson,  4  Wheat.  (U.  S.)  453;  Crosgrove  v.  Crosgrove,  69 
Conn.  416;  Montgomery  v.  Dorion,  7  N.  H.  475;  Utassy  v.  Gieding- 
hagen,  132  Mo.  53;  Jackson's  Lessee  v.  Burns,  3  Binn.  (Pa.)  75; 
Barzizas  v.  Hopkins,  2  Rand.  (Va.)  276. 

69  Priest  V.  Cummings,  20  Wend.  (N.  Y.)  338,  Finch's  Cas.  692; 
Alsberry  v.  Hawkins,  9  Dana  (Ky.)  177,  33  Am.  Dec.  546;  Buchanan 
v.  Deshon,  1  Har.  &  G.  (Md.)  280;  Foss  v.  Crisp,  20  Pick.  (Mass.) 
121,  Finch's  Cas.  645;  Sutliff  v.  Forgey,  1  Cow.  (N.  Y.)  89;  Quinn  v, 

(1158) 


Ch.  34]  PERSONAL    DISABILITIES.  §  505 

is  said,  that  the  law  will  not  do  a  vain  thing  by  giving  to 
a  man  that  which  he  cannot  keep.  Furthermore,  an  alien 
was  not  regarded  as  having  heritable  blood,  and  hence,  though 
he  died  seised  or  possessed  of  land,  it  necessarily  escheated 
to  the  state  for  lack  of  heirs  •,'^^  nor  could  one  claim  land  by 
descent  from  a  citizen  if  his  relationship  could  be  traced  only 
through  an  alien.'^^      On  the  same  principle,  the  native  wife 

Ladd,  37  Or.  261;  Reese  v.  Waters,  4  Watts  &  S.  (Pa.)  145;  Bennett 
V.  Harms,  51  Wis.  251. 

70  Slater  v.  Nason,  15  Pick.  (Mass.)  345;  Farrar  v.  Dean,  24  Mo. 
16;  Wunderle  v.  Wunderle,  144  111.  40;  Montgomery  v.  Dorion,  7  N. 
H.  475;  Rnbeck  v.  Gardner,  7  Watts  (Pa.)  455;  Barrett  v.  Kelly,  31 
Tex.  476;  Sands  v.  Lynham,  27  Grat.  (Va.)  291,  21  Am.  Rep.  348; 
Fry  V.  Smith,  2  Dana  (Ky.)  38;  Jackson  v.  Adams,  7  Wend.  (N.  Y.) 
368;  Fairfax's  Devisee  v.  Hunter's  Lessee,  7  Cranch  (U.  S.)  603;  Co. 
Litt.  2b;  2  Kent's  Comm.  54. 

71  Levy's  Lessee  v.  McCartee,  6  Pet.  (U.  S.)  102;  Beavan  v.  Went, 
155  111.  592;  Jackson  v.  Green,  7  Wend.  (N.  Y.)  333;  McLean  v. 
Swanton,  13  N.  Y.  535;  Furenes  v.  Mickelson,  86  Iowa,  508;  Meier  v. 
Lee,  106  lovs^a,  303.  This  principle  has  never  been  recognized  in 
Connecticut.     Campbell's  Appeal  from  Probate,  64  Conn.  277. 

It  has  been  decided  that  a  brother  traces  descent  from  his  brother 
directly,  and  not  through  their  father,  and  that  hence  the  alienage 
of  the  father  will  not  affect  the  right  of  one  brother  to  inhei  it  from 
the  other  if  both  are  citizens.  CoUingwood  v.  Pays,  Sid.  193,  1  Vent. 
413,  Bridg.  414.  And  so  grandsons  of  one  grandfather  have  been 
held  to  inherit  directly,  so  that  the  alienage  of  the  grandfather  is 
immaterial.  McGregor  v.  Comstock,  3  N.  Y.  408.  On  the  other  hand, 
it  has  been  held  that  the  alienage  of  the  claimant's  father  prevents 
inheritance  from  a  paternal  uncle  or  great  uncle.  Jackson  v.  Fit2 
Simmons,  10  Wend.  (N.  Y.)  10;  Furenes  v.  Mickelson,  86  Iowa,  508. 
See  Levy's  Lessee  v.  McCartee,  6  Pet.  (U.  S.)  102.  The  distinctions 
asserted  in  this  respect  are,  as  remarked  by  Chancellor  Kent  (2 
Comm.  55),  "very  subtle." 

By  11  &  12  Wm.  III.  c.  6,  the  disability  to  inherit  by  reason  of  the 
alienage  of  one  through  whom  descent  is  claimed  was  removed,  and 
a  similar  statute  has,  as  stated  in  a  subsequent  paragraph  of  the 
text,  been  adopted  in  a  number  of  states.  But  these  statutes  do  not 
enable  one  to  claim  by  descent  if  the  alien  through  whom  he  claims 
is  still  alive.  McCreery's  Lessee  v.  Somerville,  9  Wheat.  (U.  S.) 
354;  McLean  v.  Swanton,  13  N.  Y.  535. 

(1159) 


§   505  REAL  PROPERTY.  [Ch.   34 

or  husband  of  an  alien  could  not  claim  dower  or  curtesy J^ 
In  case  of  the  death  of  a  citizen,  whose  next  of  kin  are  aliens, 
the  fact  of  such  alienage  does  not  cause  the  land  to  pass  to 
the  state,  but  thej  are  simply  ignored,  and  the  others  relat- 
ed in  the  same  degree,  or  those  related  in  the  next  degree, 
take,  to  the  exclusion  of  such  aliens  J^ 

In  this  country  the  common-law  restrictions  upon  the  right 
of  aliens  to  acquire  and  hold  lands  and  transfer  have  been 
very  considerably  relaxed ;  in  most  states  they  having  the 
same  rights  in  this  regard  as  native  citizens,  and  in  some  the 
prohibition  extending  only  to  nonresident  aliensJ^  ]S[ore- 
over,  in  many  cases,  the  right  of  an  alien  in  a  particular  case* 
to  acquire  and  retain  land  has  been  upheld  by  force  of  treaty 
provisions  between  the  United  States  government  and  the 
country  to  which  the  alien  owes  allegiance. ^^  So  far  as  the 
statutes  of  any  state  may  prohibit  the  acquisition  or  holding 
of  lands  by  an  alien,  they  have  usually  been  construed  as 
operating,  like  the  common-law  prohibition,  differently  in 
respect  to  rights  acquired  by  descent  and  those  acquired  by 
purchase.^^  In  a  number  of  states,  moreover,  it  is  provided 
that  no  title  to  real  estate  shall  be  invalid  on  account  of  the 
alienage  of  a  former  owmer,  and  in  many  it  is  declared  that, 
when  one  claiming  by  descent  is  otherwise  entitled,  the  fact 
that  the  father,  mother,  or  other  ancestor  through  whom  the 
descent  is  derived  was  an  alien  shall  not  bar  the  claim. ^^ 

72  Congregational  Church  at  Mobile  v.  Morris,  8  Ala.  182;  Coxe  v. 
Gulick,  10  N.  J.  Law,  328. 

73  Orr  V.  Hodgson,  4  Wheat.  (U.  S.)  453;  Jackson  v.  Jackson,  7 
Johns.  (N.  Y.)  214;  Wunderle  v.  Wimderle,  144  111.  40;  Hardy  v. 
De  Leon,  5  Tex.  211;  McKellar  v.  McKellar,  1  Speer  (S.  C.)  536;  2 
Kent's  Comm.  56. 

74  1  Stimson's  Am.  St.  Law,  §§  6010-6015. 

75  See  2  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  245. 

76  See  cases  cited  supra,  notes  61-71. 
77 1  Stimson's  Am.  St.  Law,  §  6016. 

(1160) 


Ch.    34]  PERSONAL    DISABILITIES.  §   505a 

I  505a.    Criminals. 

At  common  law,  Avhile  one  attainted  of  treason  and  felony 
could  not,  by  alienation  of  any  estate  vested  in  him,  deprive 
the  crown  of  the  right  to  enforce  a  forfeiture,  he  could,  it 
seems,  make  and  receive  transfers  subject  to  such  right  in 
the  crown. "^  That  a  conviction  of  crime  does  not  affect  the 
capacity  of  a  person  to  take  or  transfer  lands  seems  true 
a  fortiori  in  this  country,  where  forfeiture  for  crime  is  not 
generally  recognized. '^^  A  statutory  provision,  however,  sus- 
pending the  civil  rights  of  one  sentenced  to  life  imprison- 
ment, would  seem  to  destroy  his  power  of  making  a  transfer 
inter  vivos.^'^ 

The  question  has  arisen  in  a  number  of  cases  in  this  coun- 
try whether  one  Mdio  murders  another  is  entitled  to  take 
by  descent  or  devise  from  the  latter.  The  cases  have  more 
generally  taken  the  view  that,  in  such  case,  the  devisee  or 
heir  is  entitled  to  take  as  in  any  other  case,  and  that  a 
contrary  view  would  involve  a  forfeiture  of  property  for 
crime,  such  as  is  not  recognized  in  this  country.^^  These 
decisions,  though  no  doubt  correct  in  so  far  as  they  decide 
that  the  legal  title  to  the  property  of  the  deceased  passes  to 
the  murderer,  are  probably  incorrect  in  that  they  fail  to 
apply  or  recognize  the  principle  that  a  court  of  equity  will 
intervene  to  compel  one  who  acquires  property  by  the  com- 
mission of  a  wrong  to  hold  it  as  a  trustee  ex  maJeficio  for  the 

78  Sheppard's  Touchstone,  232;  Doe  d.  Griffith  v.  Pritchard,  5  Barn. 
&  Adol.  765;  Avery  v.  Everett,  110  N.  Y.  317,  6  Am.  St.  Rep.  368. 

79  Avery  v.  Everett,  110  N.  Y.  317,  6  Am.  St.  Rep.  368;  Rankin's 
Heirs  v.  Rankin's  Ex'rs,  6  T.  B.  Mon.  (Ky.)  531. 

80  Williams  v.  Shackleford,  97  Mo.  322.  And  see  In  re  Nerac's 
Estate,  35  Cal.  396,  95  Am.  Dec.  111.  But  see,  to  the  contrary,  Avery 
v.  Everett,  110  N.  Y.  317,  333,  6  Am.  St.  Rep.  368. 

81  Shellenberger  v.  Ransom,  41  Neb.  631;  Owens  v.  Owens,  100  N.  C. 
240;  Carpenter's  Estate,  170  Pa.  St.  203;  Deem  v.  Millikin,  6  Ohio 
Cir.  Ct.  R.  357. 

(1161) 


§  505a  REAL  PROPERTY.  [Ch.  34 

persons  rightfully  entitled,^^ — a  view  which  has  been  ap- 
proved b}^  the  highest  court  of  one  state.^^ 

S2  See  the  exhaustive  discussion  of  the  question  by  James  Barr 
Ames,  Esq.,  in  36  Am.  Law  Reg.  225.  See,  also,  30  Am.  Law  Rev. 
130;  4  Harv.  Law  Rev.  394;  8  Harv.  Law  Rev.  170. 

83  Ellerson  v.  Westcott,  148  N.  Y.  149,  commenting  on  Riggs  v. 
Palmer,  115  N.  Y.  506. 

(1162) 


PART  VI. 

LIENS. 


CHAPTER  XXXV. 

MORTGAGES. 

I.     The  Nature  and  Essentials  of  a  Mortgage. 

§  506.  Historical  development. 

507.  Legal  and  equitable  theories. 

508.  The  right  of  redemption. 

509.  Interests  subject  to  mortgage. 

510.  The  ordinary  form  of  a  mortgage. 

511.  Separate  defeasance. 

512.  Conveyance  absolute  in  form. 

513.  The  obligation  secured. 

514.  Illegality  of  purpose  of  mortgage. 

515.  Agreements  for  collateral  advantage. 

II.     Rights  and  Ll-ojilities  Incident  to  the  Mortgage  Relation. 

§  516.  The  nature  of  the  mortgagor's  interest. 

517.  The  nature  of  the  mortgagee's  interest. 

518.  The  relation  not  fiduciary. 

519.  The  right  to  possession  of  the  land. 

520.  Rents  and  profits. 

521.  Effect  of  a  lease  of  the  land. 

522.  Expenditures  by  mortgagee. 

523.  Insurance. 

524.  Injuries  to  the  land. 

III.     The  Transfer  of  Mortgaged  Land. 

§  525.  General  considerations. 

526.  Personal  liability  of  the  transferee. 

527.  Mortgagor  becoming  surety. 

528.  Enforcement  of  personal  liability  by  mortgagee. 

529.  Transferee's  right  to  question  mortgage. 

530.  Transfer  of  part  of  land. 


§   506  REAL  PROPERTY.  [Ch.    35 

IV.  The  Transfer  of  a  Mortgage. 

§  531.  Express  transfer  of  mortgage. 

532.  Transfer  of  mortgage  debt. 

533.  Transfer  of  part  of  debt. 

534.  Transfer  of  mortgage  without  debt. 

535.  Freedom  of  transfer  from  equities. 

536.  Record  and  notice. 

V.  Payment,  Redemption,  and  Discharge. 

§  537.  Payment  or  tender  before  default. 

538.  Payment  or  tender  after  default. 

539.  Formal  discharge  or  satisfaction. 

540.  Enforcement  of  right  of  redemption. 

541.  Persons  entitled  to  redeem. 

542.  Amount  necessary  for  redemption. 

543.  Tacking  and  consolidation. 

544.  Exoneration  and  contribution. 

545.  Subrogation  of  person  redeeming. 

546.  Marshaling  of  securities. 

547.  Merger  of  mortgage. 

VI.  Foreclosure. 

§  548.  Accrual  of  right  to  foreclose. 

549.  Bar  by  lapse  of  time. 

550.  Strict  foreclosure  in  equity. 

551.  Foreclosure  by  entry. 

552.  Foreclosure  by  writ  of  entry. 

553.  Equitable  proceeding  for  sale. 

554.  Parties  to  proceeding. 

555.  Power  of  sale. 

556.  Scire  facias. 

557.  Stipulation  for  attorney's  fees. 

558.  Enforcement  of  personal  liability. 

I.     The  Nature  and  Essentials  of  a  Mortgage. 

A  mortgage  on  land  is  a  lien  on  an  interest  in  the  land,  cre- 
ated by  a  formal  agreement,  or  by  a  transfer  of  such  interest, 
in  order  to  secure  the  payment  of  money  or  the  performance 
of  some  other  act.^  The  modern  mortgage  is  an  equitable  de- 
velopment of  the  common-law  estate  on  condition  subsequent. 

1  The  term  "mortgage"  is  also  applied  to  the  formal  instrument 
by  which  the  mortgage  lien  is  created. 
(1164) 


Ch.    35]  MORTGAGES.  §   506 

In  some  states,  a  mortgagee  has  not  only  a  lien,  but  also  the 
legal  title  to  the  land,  which  he  may  utilize  as  against  the  mort- 
gagor to  render  his  security  more  effective.  The  mortgagor  is, 
however,  for  most  purposes,  the  owner  of  the  land. 

Any  interests  in  land  may  be  mortgaged,  including  crops 
growing  or  to  be  grown  thereon,  and  equity  recognizes  a  mort- 
gage of  things  to  be  acquired  in  the  future. 

A  mortgage  is  usually  created  by  an  instrument  in  form  a 
conveyance  on  condition  subsequent,  and  a  formal  conveyance 
is  necessary  in  order  to  vest  the  legal  title  in  the  mortgagee. 
A  mortgage  is  also  created  by  an  instrument  in  form  an  abso- 
lute conveyance,  if  this  can  be  shown  to  be  intended  for  pur- 
poses of  security  only. 

A  mortgage  may  be  given  to  secure  advances  to  be  made  in 
the  future,  but,  as  a  general  rule,  an  advance,  when  made,  is 
not  secured  by  the  mortgage  as  against  an  intervening  incum- 
brance known  to  the  mortgagee  at  the  time  of  making  the  ad- 
vance. 

Even  after  a  default  in  the  payment  to  secure  which  the 
mortgage  was  given,  the  mortgagor  may,  by  making  such  pay- 
ment, "redeem"  the  land  from  the  lien.  This  right  cannot  be 
defeated  by  agreement,  and  continues  until  "foreclosure." 

§  506.     Historical  development. 

Transfers  of  land  as  security  for  a  debt  assumed,  in  early 
times  in  England,  various  forms,  among  which  was  the  mor~ 
iuurti  vadium,  from  which  has  been  derived  the  term  "mort- 
gage." The  ynortuum  vadium  was  so  called,  it  seems,  owing 
to  the  fact  that,  upon  its  creation,  the  pledgee  became  entitled 
to  the  rents  and  profits  of  the  land,  and  consequently  the  land 
was  "dead"  to  the  debtor,  while,  by  the  form  of  pledge  known 
as  the  vivum  vadium,  the  profits  of  the  land  were  applied  on 
the  debt.  Both  these  forms  of  security  eventually  gave  place 
to  what  is  known  as  the  "common-law  mortgage,"  consisting 
of  a  feoffment  subject  to  a  condition  that,  on  payment  by 

(1165) 


§   506  REAL  PROPERTY.  [Ch.   35 

the  feoffor  (the  debtor)  of  a  sum  named,  at  a  certain  time, 
he  might  re-enter,  thereby  terminating  the  feoffee's  estate.^ 

A  strict  compliance  with  the  condition  of  a  common-law 
mortgage  was  insisted  upon  by  the  courts  of  law,  which  re- 
fused to  consider  that  the  conveyance  was  intended  merely  as 
security  for  a  debt,  and  they  treated  the  estate  of  the  mort- 
gagee as  indefeasible  if  the  condition  was  not  promptly  per- 
formed by  the  mortgagor.  Consequently,  land  was  often  for- 
feited for  a  debt  much  less  than  its  value.^  The  court  of 
chancery,  however,  quite  early  showed  a  disposition  to  relieve 
against  this  hardship,  aud  about  the  middle  of  the  seventeenth 
century  it  became  the  settled  doctrine  of  that  court  that  the 
debtor,  by  paying  the  debt  even  after  it  became  due,  could 
recover  the  ownership  of  the  land,- — that  is,  could  "redeem," 
— his  right  so  to  do  being  known  as  the  "equity  of  redemp- 
tion."^ 

Since,  unless  some  restriction  in  respect  of  time  was  placed 
on  this  right  of  redemption,  the  creditor  to  whom  the  mort- 
gage was  made,  known  as  the  "mortgagee,"  might  be  forever 
deprived  of  the  right  to  recover  his  money,  the  court  of 
chancery  allowed  this  right  of  redemption  to  be  put  an  end 
to  by  a  decree  of  "foreclosure,"  granted  upon  the  bringing  of 
proceedings  for  the  purpose,  the  right  of  redemption  being 

2Litt.  §§  332-344.  See  Digby,  Hist.  Real  Prop.  282;  Coote,  Mort- 
gages, 1-3. 

The  early  "gage"  of  land  had  much  more  the  characteristics  of 
the  modern  mortgage,  as  developed  in  equity,  than  the  common- 
law  mortgage  of  the  time  of  Littleton.  See  Glanville,  bk.  10,  c.  6; 
2  Pollock  &  Maitland  Hist.  Eng.  Law,  117-123;  The  Story  of  Mort- 
gage Law,  by  H.  W.  Chaplin,  Esq.,  4  Harv.  Law   Rev.  1. 

sLitt.  §§  332,  337;  Coote,  Mortgages,  13;  4  Kent's  Comm.  140; 
Williams,  Real  Prop.    (18th  Ed.)    510. 

4  How  V.  Vigures,  1  Rep.  Ch.  32;  Emanuel  College  v.  Evans,  1 
Rep.  Ch.  18,  Kirchwey's  Cas.  704;  Manning  v.  Purges,  1  Ch.  Cas. 
29,  Kirchwey's  Cas.  704;  1  Spence,  Equitable  Jurisdiction,  603;  4 
Kent's  Comm.  158;  Williams,  Real  Prop.  (18th  Ed.)   510. 

(1166) 


Ch.    35]  MORTGAGES.  j<   597 

thereby  cut  off  or  '"foreclosed,"  unless  the  debt  was  paid  by 
a  time  named  in  the  decree.^ 

Somewhat  later,  chancery,  regarding  the  real  purpose  of  the 
mortgage  conveyance,  adopted  the  view  that  the  mortgagor, 
in  spite  of  his  conveyance  by  way  of  mortgage,  was  still  the 
owner  of  the  property,  with  all  the  rights  of  an  owner,  so  far 
as  these  were  consistent  with  the  security  of  the  mortgagee, 
and  that  the  latter  had  merely  a  charge  or  lien  on  the  land  to 
secure  his  debt.*^  But  after  the  position  of  the  mortgagor 
as  owner  was  thus  established  in  equity,  the  term  "equity 
of  redemption,"  which  had  previously  and  most  appropriate- 
ly been  aj^plied  to  his  right  to  redeem,  was  applied,  rather  in- 
appropriately, it  would  seem,  to  this  entirely  distinct  right  of 
ownership,  and  at  the  present  day  the  term,  though  used 
in  both  senses,  more  frequently  describes  the  interest  of  the 
mortgagor  in  the  mortgaged  land  than  his  right  to  redeem 
after  default." 

§  507.     Legal  and  equitable  theories. 

While,  as  just  stated,  courts  of  equity  have  always  regard- 
ed the  mortgagee  as  having  a  lien  merely,  the  common-law 
view  that,  by  the  creation  of  the  mortgage,  the  legal  title  to 
the  land  is  transferred  to  the  mortgagee,  as  in  the  case  of  any 

5  2  Cruise,  Dig.  tit.  15,  c.  1,  §  13;  4  Kent's  Comm.  181;  2  Bl.  Comm. 
159.    See  post,  §  548  et  seq. 

At  the  present  day,  as  will  appear  later,  the  decree,  instead  of 
giving  the  property  to  the  mortgagee,  provides  for  its  sale,  and 
payment  of  his  debt  out  of  the  proceeds,  or  there  is  a  sale  without 
decree. 

6  Casborue  v.  Scarfe,  1  Atk.  603.     See  4  Kent's  Comm.  160. 

"  The  distinction  between  the  mortgagor's  right  of  ownership  in 
the  land  before  default,  and  his  right,  by  going  into  equity,  to  re- 
deem the  land  even  after  default  and  the  consequent  loss  of  the 
legal  ownership,  is,  it  would  seem,  self-evident,  but  the  courts,  by 
applying  the  same  term  to  the  two  distinct  rights,  have  continued 
to  obscure  the  nature  of  each.     See,  e.  g.,  post,  note  213. 

(11G7) 


§   507  REAL  PROPERTY.  [Ch.   35 

other  conveyance  on  condition  subsequent,  is  still  retained  in 
courts  of  law  in  England  and  some  states  in  this  country. 
This  difference  of  view  on  the  part  of  the  courts  of  equity 
and  law  does  not  involve  any  conflict  between  the  two  juris- 
dictions, since  courts  of  law  recognize,  though  they  do  not 
usually  enforce,  the  rights  given  to  the  mortgagor  by  courts 
of  equity,  while  these  latter  assent  to  the  enforcement  by 
courts  of  law,  so  far  as  necessary  for  the  protection  of  tho 
mortgagee,  of  his  legal  rights  as  o^vner  of  the  land.^  This 
view,  thus  adopted  in  some  states,  that  the  legal  title  is  in  the 
mortgagee,  at  least  for  certain  purposes,  may  conveniently 
be  termed  the  ''legal  theory"  of  a  mortgage.^  In  other  states 
the  view  that  the  mortgagee  has  the  legal  title  is  entirely 
superseded,  both  at  law  and  in  equity,  by  the  view  which  has 
always  prevailed  in  equity,  that  he  has  merely  a  lien  for  the 
security  of  his  debt.  In  a  number  of  states,  there  is  a  statu- 
tory provision  confirmatory  of  this  "equitable  theory"  of 
a  mortgage.'^*' 

s4  Kent's  Comm.  160;   3  Pomeroy,  Eq.  Jiir.  §  1184. 

9  The  states  in  which  this  theory  is  adopted  are  Alabama,  Ar- 
kansas, Connecticut,  Illinois,  Maine,  Maryland,  Massachusetts,  New 
Hampshire,  New  Jersey,  North  Carolina,  Ohio,  Pennsylvania,  Rhode 
Island,  Tennessee,  Vermont,  Virginia,  and  West  Virginia.  1  Jones, 
Mortgages  (5th  Ed.)  §§  17-59;  3  Pomeroy,  Eq.  Jur.  (2d  Ed.)  §§ 
1186-1191.  See  Welsh  v.  Phillips,  54  Ala.  309,  25  Am.  Rep.  679; 
Kannady  v.  McCarron,  18  Ark.  166;  Chamberlain  v.  Thompson,  10 
Conn.  243,  26  Am.  Dec.  390;  Barrett  v.  Hinckley,  124  111.  32,  7  Am. 
St.  Rep.  331;  Blaney  v.  Bearce,  2  Me.  132;  Jamieson  v.  Bruce,  6  Gill 
&  J.  (Md.)  72,  26  Am.  Dec.  557;  Ewer  v.  Hobbs,  5  Mete.  (Mass.)  1; 
Howard  v.  Robinson,  5  Cush.  (Mass.)  119;  Hobart  v.  Sanborn,  13 
N.  H.  226,  38  Am.  Dec.  483;  Tryon  v.  Munson,  77  Pa.  St.  250,  Finch's 
Cas.  538;  Simmons  v.  Brown,  7  R.  I.  427;  Faulkner's  Adm'x  v.  Brock- 
enbrough,  4  Rand.    (Va.)    245. 

1"  The  states  in  which  this  view  prevails  are  California,  Colorado, 
Florida,  Georgia,  Indiana,  Iowa,  Kansas,  Kentucky,  Louisiana,  Mich- 
igan, Minnesota,  Montana,  Nebraska,  Nevada,  New  York,  North  Da- 
kota, Oregon,  South  Carolina,  South  Dakota,  Texas,  Wisconsin,  Utah, 
and  Washington.     1  Jones,  Mortgages,  §§  17-59;  3  Pomeroy,  Eq.  Jur. 

(1168) 


Ch.    35]  MORTGAGES.  §   5O7 

Even  in  those  states  which  have  adopted  the  English  or 
legal  theory  of  a  mortgage,  the  courts  have  not  consistently 
followed  it  out  to  all  its  logical  consequences ;  a  tendency  to 
regard  the  mortgage  according  to  its  real  nature  as  a  mere  se- 
curity being  constantly  at  work,  even  in  courts  of  law,  a 
tendency  which  has  been  increased  and  strengthened  by  the 
various  statutes  admitting  equitable  defenses  in  legal  actions, 
or  otherwise  obscuring  the  line  betwcBn  equity  and  law.^^ 
The  extension  of  the  view  that  a  mortgage  is  merely  a  lien 
marks  a  distinct  advance  in  legal  ideas,  and  it  is  to  be  ex- 
pected that,  with  the  passage  of  time,  the  crude  conception  of 
an  estate  on  condition  in  the  mortgagee  will  entirely  disap- 
pear.^^ 

(2d  Ed.)  §§  1186-1191.  See  McMillan  v.  Richards,  9  Cal.  365,  70  Am. 
Dec.  655;  Button  v.  Warschauer,  21  Cal.  609,  82  Am.  Dec.  765; 
Drake  v.  Root,  2  Colo.  685;  McMahon  v.  Russell,  17  Fla.  698;  Burn- 
side  V.  Terry,  45  Ga.  621;  Grable  v.  McCulloh,  27  Ind.  472;  Chick  v. 
Willetts,  2  Kan.  384;  Taliaferro  v.  Gay,  78  Ky.  496;  Caruthers  v. 
Humphrey,  12  Mich.  27Q;  Adams  v.  Corriston,  7  Minn.  456  (Gil.  365) ; 
Rogers  v.  Benton,  39  Minn.  39,  12  Am.  St.  Rep.  613;  Webb  v.  Hosel 
ton,  4  Neb.  308,  19  Am.  Rep.  638;  Phyfe  v.  Riley,  15  Wend.  (N.  Y.) 
248,  30  Am.  Dec.  55;  Hubbell  v.  Moulson,  53  N.  Y.  225,  13  Am.  Rep. 
519;  Bredenburg  v.  Landrum,  32  S.  C.  215;  Wright  v.  Henderson, 
12  Tex.  43. 

In  three  states  (Delaware,  Mississippi,  and  Missouri)  the  mort- 
gagee has,  before  default,  merely  a  lien,  but  after  default  and  entry 
by  the  mortgagee,  the  latter  has  the  legal  title,  and,  as  owner,  may 
take  possession,  or  may  adopt  any  legal  remedies  to  obtain  posses- 
sion. Doe  d.  Hall  v.  Tunnell,  1  Houst.  (Del.)  320;  Walker's Adm'x 
V.  Farmers'  Bank,  8  Houst.  (Del.)  258;  Cooch's  Lessee  v.  Gerry,  3 
Har.  (Del.)  280;  Hill  v.  Robertson,  24  Miss.  368;  Woods  v.  Hilder- 
brand,  46  Mo.  284,  2  Am.  Rep.  513;  Buck  v.  Payne,  52  Miss.  271; 
Reddick  v.  Gressman,  49  Mo.  389;  Johnson  v.  Houston,  47  Mo.  227; 
1  Jones,  Mortgages,  §§  24,  38,  39,  58. 

"  See  3  Pomeroy,  Eq.  Jur.  §  1186.    See  post,  §  517. 

12  See  Holland,  Jurisprudence,  202;    Digby,  Hist.  Real  Prop.  305. 

(1109) 
Real  Prop. — 74. 


§   509  REAL  PROPERTY.  [Ch.    35 

§  508.     The  right  of  redemption. 

After  the  court  of  chancery  established  the  doctrine  that 
the  mortgagor  might  redeem  even  after  default,  persons  lend- 
ing money  on  mortgage  security  naturally  attempted  to  defeat 
the  right  of  redemption  in  the  mortgagor  by  obtaining  from 
him  a  written  waiver  of  the  right,  or  contract  not  to  assert  it ; 
but  chancery,  recognizing  that  such  a  contract  was  extorted 
from  the  necessities  of  the  borrower,  decided  that  the  right 
of  redemption  constituted  an  integral  part  of  every  mort- 
gage, and  could  not  be  waived  or  "clogged"  by  a  provision  in 
the  mortgage  or  other  contemporaneous  agreement,  and  this 
rule,  frequently  expressed  in  the  phrase,  "once  a  mortgage, 
always  a  mortgage,"  has  invariably  been  strictly  enforced.^* 
And  not  only  is  a  contemporaneous  agreement  to  this  effect 
void,  but  a  subsequent  agreement  which,  without  affecting 
the  existence  of  the  mortgage,  provides  that  there  shall  be  no 
right  of  redemption  in  case  of  nonpayment  at  maturity,  is 
void,  as  depriving  the  mortgage  of  one  of  its  essential  fea- 
tures.^"* 

§  509.     Interests  subject  to  mortgage. 

Any  interest  in  land  which  may  be  the  subject  of  sale, 

13  Howard  v.  Harris,  1  Vern.  190,  Kirchwey's  Cas.  430;  Jason  v. 
Eyres,  2  Ch.  Cas.  33;  Peugh  v.  Davis,  96  U.  S.  332;  Batty  v.  Snook, 
5  Mich.  231,  Kirchwey's  Cas.  433;  Henry  v.  Davis,  7  Johns.  Ch.  (N. 
Y.)  40;  McCauley  v.  Smith,  132  N.  Y.  524,  Finch's  Cas.  1109; 
Youle  V.  Richards,  1  N.  J.  Eq.  534,  23  Am.  Dec.  722;  Bayley  v. 
Bailey,  5  Gray  (Mass.)  505;  Johnston  v.  Gray,  16  Serg.  &  R.  (Pa.) 
361,  16  Am.  Dec.  577;  Turpie  v.  Lowe,  114  Ind.  37;  Hyndman  v. 
Hyndman,  19  Vt.  9,  46  Am.  Dec.  171;  Jackson  v.  Lynch,  129  HI.  72; 
Stoutz  V.  Rouse,  84  Ala.  309;  Bradbury  v.  Davenport,  114  Cal.  593, 
55  Am.  St.  Rep.  92,  and  note.  But  if  the  mortgage  is  intended  mere- 
ly as  a  family  settlement  or  provision,  the  right  of  redemption  may, 
it  has  been  held,  be  restricted.  Bonham  v.  Newcomb,  1  Vern.  231 
Kirchwey's  Cas.  430,  reversing  Newcomb  v.  Bonham,  1  Vern.  7. 
See  Coote,  Mortgages,  27. 

14  Tennery  v.  Nicholson,  87  111.  464.     See  Batty  v.  Snook,  5  Mich. 
231,  Kirchwey's  Cas.  432. 

(1170) 


Ch.  35]  MORTGAGES.  §  509 

grant,  or  assignment  may  be  mortgaged.'"'^  Accordingly, 
there  may  be  a  mortgage  of  a  rent,^®  an  estate  in  expectancy,^  "^ 
an  estate  tail,^®  an  estate  for  life,^^  including  a  widow's  dower 
estate,^''  and  an  estate  for  years.^*  A  mortgagee's  interest 
may  itself  be  mortgaged,  whatever  theory  be  held  as  to  the 
character  of  such  interest.^^  An  heir  or  devisee  may  mort- 
gage his  interest  in  the  estate  of  the  deceased,  subject  to  the 
payment  of  the  latter's  debts. "^ 

A  mortgage  may  be  made  of  improvements  on  land  apart 
from  the  land  itself,^"*  and  growing  crops  may  be  mortgaged 
by  the  owner  of  the  land.^^ 

Equitable  interests,  as  well  as  legal,  may  be  mortgaged ;  a 
usual  instance  of  such  a  mortgage  occurring  in  the  case  of  a 
mortgage  by  the  vendee  under  a  contract  of  sale.^^     The 

15  2  story,  Eq.  Jur.  §  1021;  4  Kent's  Comm.  144;  Neligh  v.  Mich- 
enor,  11  N.  J.  Eq.  539;  Miller  v.  Tipton,  6  Blackf.  (Ind.)  238;  Dor- 
sey  V.  Hall,  7  Neb.  460. 

16  4  Kent's  Comm.  144;  Van  Rensselaer  v.  Dennison,  35  N.  Y.  393. 

17  In  re  John  &  Cherry  Streets,  19  Wend.  (N.  Y.)  659;  Curtis  v. 
Root,  20  111.  518;  Flanders  v.  Greely,  64  N.  H.  357. 

isHosmer  v.  Carter,  68  111.  98. 
isLanfair  v.  Lanfair,  18  Pick.    (Mass.)    304. 
20  Mutual  Life  Ins.  Co.  of  New  York  v.  Shipman,  119  N.  Y.  324. 
214  Kent's  Comm.  144;   Coote,  Mortgages,  c.  25;    French  v.  Pres- 
cott,  61  N.  H.  27;  Hagar  v.  Brainerd,  44  Vt.  294. 

22  Henry  v.  Davis,  7  Johns.  Ch.  (N.  Y.)  40;  Coffin  v.  Loring,  9 
Allen  (Mass.)  154;  Johnson  v.  Blydenburgh,  31  N.  Y.  432;  Cutts  v. 
York  Mfg.  Co.,  18  Me.  190. 

23  Flanders  v.  Greely,  64  N.  H.  357;  Drake  v.  Paige,  127  N.  Y. 
562. 

24  Mitchell  V.  Black,  64  Me.  48;  Manwaring  v.  Jenison,  61  Mich. 
117;  Gooding  v.  Riley,  50  N.  H.  400;  Fletcher  v.  Kelly,  88  Iowa, 
475. 

25Briggs  V.  United  States,  143  U.  S.  346;  Butt  v.  Ellett,  19  Wall. 
(U.  S.)  544;  Luce  v.  Moorehead,  73  Iowa,  498,  5  Am.  St.  Rep.  695; 
Gotten  V.  Willoughby,  83  N.  C.  75,  35  Am.  Rep.  564;  Kimball  v. 
Sattley,  55  Vt.  285,  45  Am.  Rep.  614. 

2'5Laughlin  v.  Braley,  25  Kan.  147;  Arlington  Mill  &  Elevator  Co. 
V.  Yates,  57  Neb.  286;  Baker  v.  Bishop  Hill  Colony,  45  111.  264;  Bull 

(1171) 


§   509  I^EAL  PROPERTY.  [Ch.   35 

mortgage  of  an  equitable  interest  in  land  cannot,  it  would 
seem,  in  states  in  which  the  legal  theory  of  mortgages  is  rec- 
ognized, have  the  effect  of  passing  the  legal  title  to  the  mort- 
gagee, since  the  mortgagor  has  no  such  title  to  pass.^'^  And 
so  in  England  it  is  recognized  that  a  second  mortgage — that 
is,  a  mortgage  of  the  mortgagor's  interest — passes  no  legal 
title  to  the  mortgagee.^^  In  this  country,  however,  no  such 
distinction  between  the  positions  of  first  and  second  mort- 
gagees seems  to  be  recognized.^^ 

Future  acquisitions. 

A  mere  possibility  of  acquiring  property  is  not  the  subject 
of  mortgage,  as  it  is  not  the  subject  of  grant,  and  conse- 
quently one  cannot,  at  law,  mortgage  interests  in  land  to  be 
acquired  by  him  in  the  f  uture.^*^  In  equity,  however,  a  mort- 
gage which  in  terms  covers  things  thereafter  to  be  acquired 
creates  a  lien  or  charge  on  such  things,  upon  their  acquisition 
by  the  mortgagor ;  this  being  an  application  of  a  general  equi- 
table principle  that,  if  one,  by  contract,  undertakes  to  create 
a  lieu  or  charge,  the  lien  or  charge  will  be  regarded  as  actu- 
ally existing,  upon  the  acquisition  by  such  person  of  the  thing 
sought  to  be  charged.^ ^      This  principle  has  been  frequently 

V.  Shepard,  7  Wis.  449;  Sinclair  v.  Armitage,  12  N.  J.  Eq.  174;  Mc- 
Pherson  v.  Hay  ward,  81  Me.  329;  Davis  v.  Milligan,  88  Ala.  523; 
Attorney  General  v.  Purmort,  5  Paige  (N.  Y.)  620;  Holbrook  v. 
Betton,  5  Fla.  99. 

2T  See  Jarvis  v.  Butcher,  16  Wis.  307. 

28  Coote,  Mortgages,  c.  36.  This  is  the  basis  of  the  English  doc- 
trine of  "tacking."    See  post,  §  543. 

29  See  3  Pomeroy,  Bq.  Jur.  §  1185. 

30  4  Kent's  Comm.  144;  2  Story,  Eq.  Jur.  §  1021;  Purcell's  Adm'r 
V.  Mather,  35  Ala.  570,  76  Am.  Dec.  307;  Bayler  v.  Com.,  40  Pa.  St. 
37;  Jones  v.  Richardson,  10  Mete.  (Mass.)  481;  Emerson  v.  European 
&  N.  A.  Ry.  Co.,  67  Me.  387,  24  Am.  Rep.  39;  Looker  v.  Peckwell,  38 
N.  J.  Law,  253,  Kirchwey's  Cas.  66. 

31  Pennock  v.  Coe,  23  How.   (U.  S.)    117;   Holroyd  v.  Marshall,  10 

(11T2) 


Cb.    35]  MORTGAGES.  §   509 

applied  in  the  case  of  railroad  mortgages  in  terms  including 
property  thereafter  to  be  acquired  b}^  the  railroad  company.^^ 
To  the  rule  prohibiting  such  mortgages  at  law  there  are  a 
few  apparent  exceptions,  which  are,  however,  explained  by 
the  application  of  other  principles  not  inconsistent  therewith. 
A  thing  which  is  added  to  another  thing  by  way  of  accession, 
natural  or  artificial,  so  as  to  become  a  part  thereof  in  view  of 
the  law,  is  subject  to  a  previous  mortgage  upon  the  thing  to 
which  it  is  added.  This  occurs  when  a  house  is  built  upon 
mortgaged  land,  or  articles  or  machinery  are  attached  to  a 
mortgaged  building,  so  as  to  become  part  thereof,  these  be- 
ing applications  of  the  principle  of  fixtures,  previously  treat- 
ed.^^  So,  one  may  mortgage  things  which  are  the  natural 
increase  of  any  things  which  he  owns  at  the  date  of  the  mort- 
gage, he  being  said  to  have  such  increase  ''potentially."^^ 

H.  L.  Cas.  191,  Kirchwey's  Cas.  42;  Smithurst  v.  Edmunds,  14  N, 
J.  Eq.  408,  Kirchwey's  Cas.  61;  Mitchell  v.  Winslow,  2  Story,  630, 
Fed.  Cas.  No.  9,673;  Brett  v.  Carter,  2  Lowell,  458,  Fed.  Cas.  No. 
1,844,  Kirchwey's  Cas.  67;  Philadelphia,  W.  &  B.  R.  Co.  v.  Woelpper, 
64  Pa.  St.  366,  3  Am.  Rep.  596;  Kribbs  v.  Alford,  120  N.  Y.  519, 
Kirchwey's  Cas.  72;  Apperson  v.  Moore,  30  Ark.  56;  Sillers  v.  Les- 
ter, 48  Miss.  513.  This  is  an  example  of  an  equitable  lien.  See 
post,  §  561.  But  in  Massachusetts,  chattels  acquired  after  the  date 
of  a  mortgage  do  not  become  subject  thereto  until  possession  is 
taken  by  the  mortgagee.  Moody  v.  Wright,  13  Mete.  (Mass.)  17, 
46  Am.  Dec.  706,  Kirchwey's  Cas.  54;  Low  v.  Pew,  108  Mass.  347; 
Chase  v.  Denny,  130  Mass.  566.     See  13  Harv.  Law  Rev.  598. 

32  Piatt  V.  New  York  &  S.  B.  Ry.  Co.,  9  App.  Div.  (N.  Y.)  87,  153 
N.  Y.  670,  Kirchwey's  Cas.  97;  Pierce  v.  Emery.  32  N.  H.  484. 
Kirchwey's  Cas.  80;  Phillips  v.  Winslow,  18  B.  Mon.  (Ky.)  431; 
Central  Trust  Co.  v.  Kneeland,  138  U.  S.  414;  Pierce  v.  Milwaukee 
&  St.  P.  R.  Co.,  24  Wis.  551;  Philadelphia,  W.  &  B.  R.  Co.  v.  Woelp- 
per, 64  Pa.  St.  366. 

33  Ottumwa  Woolen  Mill  Co.  v.  Hawley,  44  Iowa,  57,  24  Am.  Rep. 
719;  Wharton  v.  Moore,  84  N.  C.  479,  37  Am.  Rep.  627;  Winslow  v. 
Merchants  Ins.  Co.,  4  Mete.  (Mass.)  314,  38  Am.  Dec.  368;  Hopewell 
Mills  V.  Taunton  Sav.  Bank,  150  Mass.  522,  15  Am.  St.  Rep.  235.  See 
ante,  §  238. 

34  Philadelphia,  W.  &  B.  R.  Co.  v.  Woelpper,  64  Pa.  St.  366,  3  Am. 

(1173) 


§   509  REAL  PROPERTY.  [Ch.  35 

Accordingly,  it  is  held  that  the  owner  of  land  may  mortgage 
crops  to  be  grown  thereon,  ''for  the  land  is  the  mother  and 
root  of  all  fruits.  Therefore,  he  that  hath  it  may  grant  all 
fruits  that  may  arise  upon  it  after,  and  the  property  shall 
pass  as  soon  as  the  fruits  are  extant. "^^  In  some  states,  how- 
ever, it  is  held  that  a  mortgage  of  annual  crops  {fructus  in- 
dustriales),  which  have  not  yet  been  planted,  is  invalid,  es- 
pecially as  against  attaching  creditors,  since  such  crops  can- 
not be  regarded  as  having  even  a  potential  existence,  they  be- 
ing distinguished  in  this  respect  from  the  spontaneous  prod- 
uct of  the  earth,  or  the  increase  of  that  which  is  already  in 
existence.^® 

A  mortgagee  of  land  is  a  purchaser,  within  the  meaning 
of  the  recording  acts,  and  accordingly,  if  his  mortgage  is 
based  on  a  valuable  consideration,  he  takes  priority  as  against 
a  prior  unrecorded  instrument  of  which  he  has  no  notice.^'^ 

Rep.  596;  Emerson  v.  European  &  N.  A.  Ry.  Co.,  67  Me.  387,  24  Am. 
Rep.  39. 

35  Hobart,  C.  J.,  in  Grantham  v.  Hawley,  Hob.  132,  Kirchwey's  Cas. 
40.  To  the  same  effect,  see  Jones  v.  Webster,  48  Ala.  109;  Everman 
V.  Robb,  52  Miss.  653,  24  Am.  Rep.  682;  Gotten  v.  Willoughby,  83  N. 
C.  75;  Arques  v.  Wasson,  51  Cal.  620,  21  Am.  Rep.  718;  Cudworth  v. 
Scott,  41  N.  H.  456;  Moore  v.  Byrum,  10  Rich.  (S.  C.)  452,  30  Am. 
Rep.  58.  But  the  crops  must  be  clearly  identified  in  the  mortgage 
by  reference  to  the  land  on  which,  and  the  year  or  years  within 
which,  they  are  to  be  grown.  Emerson  v.  European  &  N.  A.  Ry.  Co., 
67  Me.  387,  24  Am.  Rep.  39;  Shaw  v.  Gilmore,  81  Me.  396;  Stephens 
V.  Tucker,  55  Ga.  543. 

36  Hutchinson  v.  Ford,  9  Bush  (Ky.)  318,  15  Am.  Rep.  711;  Roches- 
ter Distilling  Co.  v.  Rasey,  142  N.  Y.  570,  40  Am.  St.  Rep.  635,  Kirch- 
wey's Cas.  75;  Gittings  v.  Nelson,  86  111.  591;  Long  v.  Hines,  40  Kan. 
220,  10  Am.  St.  Rep.  189.  That  such  a  mortgage  is  good  even  against 
creditors,  see  Arques  v.  Wasson,  51  Cal.  020,  21  Am.  Rep.  718;  Butt 
v.  Ellett,  19  Wall.  (U.  S.)  544;  Wheeler  v.  Becker,  68  Iowa,  723. 

3T  See  Webb,  Record  of  Title,  §  209 ;  1  Stimson's  Am.  St.  Law,  §§  1611, 
1625;  Carpenter  v.  Longan,  16  Wall.  (U.  S.)  271;  Chapman  v.  Miller, 
130  Mass.  289;  Fleschner  v.  Sumpter,  12  Or.  161;  Seevers  v.  Delash- 

(1174) 


Ch.   35]  MORTGAGES.  §   510 

§  510.     The  ordinary  form  of  a  mortgage. 

A  mortgage,  being  a  conveyance  of,  or  a  contract  concern- 
ing, an  interest  in  land,  must,  under  the  Statute  of  Frauds, 
be  in  writing.^^  Though,  as  before  shown,  the  view  that  a 
mortgage  is  a  lien  merely  has  for  most  purposes  displaced  the 
view  that  it  is  an  estate  on  condition,  the  old  form  of  con- 
veyance on  condition  is  usually  retained.  In  states  where 
the  legal  theory  still  obtains,  conformity  with  the  essen- 
tials of  a  conveyance  is  essential  in  order  that  the  instru- 
ment may  be  sufficient  to  vest  the  legal  title  in  the  mort- 
gagee,^^ and  the  omission  of  the  words  of  inheritance  neces- 
sary in  a  conveyance  in  fee  simple  will  have  the  effect  of  re- 
ducing the  estate  of  the  mortgagee  to  one  for  life  only."*"  In 
states  where  the  equitable  theory  of  a  mortgage  prevails,  there 
is  no  necessity  that  the  instrument  have  the  essentials  of  a 
conveyance,  it  being  sufficient  that  the  instrument  show  an  in- 
tention to  mortgage,  and  that  it  be  executed  as  required  by 
the  statute.'*^  The  statute  quite  frequently  authorizes  a 
simple  and  concise  form,  stating  the  bare  essentials  of  a  mort- 
gage, and  it  is,  of  course,  sufficient  if  this  be  followed. 

The  mortgaged  land  must  always  be  described  in  the  mort- 
gage with  sufficient  particularity  to  enable  it  to  be  identified, 
as  in  the  case  of  any  other  conveyance,  but  a  reference  to  an- 

mutt,  11  Iowa,  174,  77  Am.  Dec.  139.  Authorities  cited  in  20  Am.  & 
Eng.  Enc.  Law  (1st  Ed.)  576. 

38  Bogert  V.  Bliss,  148  N.  Y.  194,  51  Am.  St.  Rep.  684,  Kirchwey's 
Cas.  121;  McCue  v.  Smith,  9  Minn.  252  (Gil.  237),  86  Am.  Dec.  100. 

3'j  See  Dunn  v.  Raley,  58  Mo.  134;  Peckham  v.  Haddock,  36  111.  38; 
Goodman  v.  Randall,  44  Conn.  321.  See  article  by  H.  W.  Chaplin, 
Esq.,  in  4  Harv.  Law  Rev.  1. 

40  Wilson  V.  King,  27  N.  J.  Eq.  374;  Allendorff  v.  Gaujengigl,  146 
Mass.  542;  Smith  v.  Haskins,  22  R.  I.  6. 

41  See  Morrill  v.  Skinner,  57  Neb.  164;  De  Leon  v.  Higuera,  15  Cal. 
483;  Jackson  v.  Carswell,  34  Ga.  279. 

(1175) 


§   510  REAL  PROPERTY.  [Ch.   35 

Other  instrument,  in  which  the  property  is  described,  is  suffi- 
cient for  this  purpose.^  ^ 

The  requisites  as  to  execution  are  ordinarily  expressly 
named  in  the  statute.  An  acknowledgment  is  usually  requi- 
site, as  in  the  case  of  absolute  transfers  of  land,'*^  only  as  a 
preliminary  to  the  record  of  the  conveyance. 

A  mortgage  must  be  delivered  as  if  an  absolute  convey- 
ance,^^ and  there  are  a  number  of  decisions  to  the  effect  that 
the  mortgage  must  be  accepted  by  the  mortgagee,  and  that, 
until  such  acceptance,  other  persons  may  acquire  rights  in 
the  premises,  as  by  judgment  or  attachment  liens,  which  will 
take  precedence  of  the  unaccepted  mortgage.^^ 

A  mortgage  must,  in  all  the  states,  be  recorded  in  order  to 
be  effective  to  create  a  lien  as  against  a  subsequent  purchaser 
of  the  land  for  value  without  notice  of  its  existence.^^     In 

42  De  Leon  v.  Higuera,  15  Cal.  483;  Freed  v.  Brown,  41  Ark.  495; 
Atkins  V.  Paul,  67  Ga.  97;  Cochran  v.  Utt,  42  Ind.  267;  Stead  v.  Gros- 
field,  67  Mich.  289;  Wilson  v.  Boyce,  92  U.  S.  320;  Boon  v.  Pierpont, 
28  N.  J.  Bq.  7;  Tucker  v.  Field,  51  Miss.  191;  1  Jones,  Mortgages,  §§ 
66,  67. 

43  See  ante,  §  405. 

44  Freeman  v.  Peay,  23  Ark.  439;  Bell  v.  Farmers'  Bank  of  Ken- 
tucky, 11  Bush  (Ky.)  34,  21  Am.  Rep.  205;  Woodbury  v.  Fisher,  20 
Ind.  387,  83  Am.  Dec.  325;  Shirley  v.  Burch,  16  Or.  83,  8  Am.  St.  Rep. 
273;  Knapstein  v.  Tinette,  156  111.  322;  Farmers'  &  Mechanics'  Bank 
V.  Drury,  38  Vt.  426. 

45  Woodbury  v.  Fisher,  20  Ind.  387,  83  Am.  Dec.  325;  Freeman  v, 
Peay,  23  Ark.  439;  Bell  v.  Farmers'  Bank  of  Kentucky,  11  Bush  (Ky.)> 
34,  21  Am.  Rep.  205;  Adams  v.  Johnson,  41  Miss.  258;  Wallis  v.  Tay- 
lor, 67  Tex.  431;  Alliance  Milling  Co.  v.  Eaton,  86  Tex.  401;  Welsh 
V.  Sackett,  12  Wis.  243,  3  Gray's  Cas.  714;  Oxnard  v.  Blake,  45  Me. 
602;  Woodbury  v.  Fisher,  20  Ind.  389.  Contra,  Merrills  v.  Swift,  18 
Conn.  257,  3  Gray's  Cas.  677,  46  Am.  Dec.  315;  Elsberry  v.  Boykin, 
55  Ala.  336.  See  the  discussion  of  the  analogous  question  of  the 
necessity  of  acceptance  in  the  case  of  an  absolute  conveyance,  ante, 
§  407. 

46  See  1  Stimson's  Am.  St.  Law,  §  1858;  1  Jones,  Mortgages,  §  456. 
(1176) 


Ch.  35]  MORTGAGES.  §   511 

some  states  there  are  peculiar  provisions  in  regard  to  mort- 
gages, as  distinguished  from  other  instruments  affecting  land, 
which  in  effect  make  their  record  within  a  certain  time  after 
execution  effective  even  as  against  conveyances  made  and  re- 
corded between  the  time  of  execution  of  the  mortgage  and  its 
record,  thus  depriving  a  purchaser  of  land,  in  certain  cases, 
of  the  right  to  rely  on  the  record  title  as  against  a  mortgage 
of  which  he  has  no  notice  because  not  recorded. ^"^ 

§  511.     Separate  defeasance. 

Though  the  condition  or  proviso  that  the  conveyance  shall 
be  void  in  case  of  compliance  by  the  mortgagor  with  his  con- 
tract, termed  the  "defeasance,"  is  usually  inserted  in  the  con- 
veyance to  the  mortgagee,  this  is  not,  in  most  jurisdictions, 
necessary,  and  it  may  be  contained  in  a  separate  instrument.^^ 
This  practice  has,  however,  been  criticised,  as  liable  to  be  pro- 
ductive of  injury  to  the  mortgagor.^^ 

In  order  that  a  mortgage  with  a  separate  defeasance  be  ef- 
fective as  such  at  law,  it  is  necessary  that  the  two  instruments 
be  delivered  at  approximately  the  same  time,  or  at  least  that 
they  be  parts  of  the  same  transaction.^*^    Likewise,  in  order  to 

47 1  Jones,  Mortgages,  §  458. 

4s  Kent's  Comm.  141;  Chase's  Case,  1  Bland's  Ch.  (Md.)  206,  17 
Am.  Dec.  277;  Edrington  v.  Harper,  3  J.  J.  Marsh.  (Ky.)  353,  20  Am. 
Dec.  145;  Harbison  v.  Lemon,  3  Blackf.  (Ind.)  51,  23  Am.  Dec.  376; 
Colwell  V.  Woods,  3  Watts  (Pa.)  188,  27  Am.  Dec.  345;  Bunker  v.  Bar- 
ron, 79  Me.  62,  1  Am.  St.  Rep.  282;  Teal  v.  Walker,  111  U.  S.  242; 
Kelley  v.  Leachman,  2  Idaho,  1112;  Ferris  v.  Wilcox,  51  Mich.  105, 
47  Am.  Rep.  551. 

49  4  Kent's  Comm.  141;  Baker  v.  Wind,  1  Ves.  Sr.  160. 

50  Nugent  v.  Riley,  1  Mete.  (Mass.)  117,  35  Am.  Dec.  355;  Bryan 
V.  Cowart,  21  Ala.  92;  Bennock  v.  Whipple,  12  Me.  346,  28  Am.  Dec. 
186;  Lund  v.  Lund,  1  N.  H.  39,  8  Am.  Dec.  29;  Gunn's  Appeal,  55 
Conn.  149;  Moores  v.  Wills,  69  Tex.  109;  Bearss  v.  Ford,  108  111.  16; 
Radford  v.  Folsom,  58  Iowa,  473;  Lane  v.  Shears,  1  Wend.  (N.  Y.) 
433.     See  Wilson  v.  Shoenberger's  Ex'rs,  31  Pa.  St.  295. 

(1177) 


§   512  I^EAL  PROPERTY.  [Ch.  35 

create  a  mortgage  valid  at  law  as  well  as  in  equity,  the  de- 
feasance must  be  of  as  high  a  nature  as  the  conveyance  it- 
self,'— that  is,  if  the  latter  is  under  seal,  the  defeasance  must 
likewise  be  under  seal,  so  that  it  may  be  regarded  as  a  part 
of  the  same  instrument,  and  it  must  be  executed  with  the  other 
formalities  required  in  the  case  of  a  conveyance  of  land.°^ 

The  defeasance  should  be  recorded  with  the  absolute  con- 
veyance. In  some  states  it  is  provided  that,  if  the  defeasance 
be  not  recorded,  the  grantee  shall  take  nothing  under  the  con- 
veyance, or  shall  derive  no  benefit  from  the  record  of  the  con- 
veyance,'^^ while  in  others  it  is  provided  that,  in  such  case, 
the  conveyance  shall  pass  an  absolute  title,  except  as  against 
the  maker  of  the  instrument,  his  heirs  and  devisees,  and,  usu- 
ally, persons  having  actual  notice  of  the  instrument  of  de- 
feasance,^^ which  is  the  rule  in  the  absence  of  any  statute  on 
the  subject.^^  In  the  first  class  of  states,  therefore,  it  is  to 
the  advantage  of  the  mortgagee  to  see  that  the  defeasance  is 
recorded,  while,  in  the  latter  class,  the  mortgagor  or  those 
claiming  under  him  can  alone  suffer  from  the  absence  of  the 
defeasance  from  the  record.^^ 

§  512.     Conveyance  absolute  in  form. 

While,  as  stated  above,  a  defeasance  in  a  separate  instru- 
ment is  not  sufficient  to  create  a  legal  mortgage  if  it  is  not  exe- 

61  Baker  v.  Wind,  1  Ves.  Sr.  160;  Lund  v.  Lund,  1  N.  H.  39,  8  Am. 
Dec.  29;  Kelleran  v.  Brown,  4  Mass.  443,  Kirchwey's  Cas.  177;  Flagg 
V.  Mann,  14  Pick.  (Mass.)  467;  Warren  v.  Lovis,  53  Me.  463. 

52  1  Stimson's  Am.  St.  Law,  §  1860.  See  Friedley  v.  Hamilton,  17 
Serg.  &  R.  (Pa.)  70,  17  Am.  Dec.  638;  Corpman  v.  Baccastow,  84  Pa. 
St.  363;  Brown  v.  Dean,  3  Wend.  (N.  Y.)  208. 

53  1  Stimson's  Am.  St.  Law,  §  1860.  See  Smith  v.  Monmouth  Mut. 
Fire  Ins.  Co.,  50  Me.  96;  Columbia  Bank  v.  Jacobs,  10  Mich.  349,  81 
Am.  Dec.  792;  Carpenter  v.  Lewis,  119  Cal.  18. 

54  Knight  V.  Dyer,  57  Me.  174,  99  Am.  Dec.  765;  Koons  v.  Grooves,  20 
Iowa,  373;  Frink  v.  Adams,  36  N.  J.  Eq.  485;  Turman  v.  Bell,  54  Ark. 
273. 

55  See  1  Jones,  Mortgages,  §  513. 

(1178) 


Ch.  35]  MORTGAGES.  j;  512 

cuted  with  the  same  formalities  as  the  deed  of  conveyance  it- 
self, in  equity  the  rule  is  different,  and  there  any  agreement, 
however  informally  expressed  or  executed,  showing  an  inten- 
tion that  an  absolute  conveyance  should  operate  as  a  security 
for  the  repayment  of  money,  is  sufficient  to  make  the  transac- 
tion a  mortgage.^^  Courts  of  equity,  moreover,  and,  in  some 
■of  the  states,  even  courts  of  law,  allow  it  to  be  shown  by  ex- 
trinsic evidence  that  a  conversance  of  land  absolute  in  form, 
unaccompanied  by  a  written  defeasance,  was  intended  as  se- 
curity merely,  and  such  conveyance,  shown  to  be  so  intend- 
ed, is  always  regarded  as  a  mortgage.^^ 

56  4  Kent's  Comm.  142;  Hughes  v.  Edwards,  9  Wheat.  (U.  S.)  489; 
Eaton  V.  Green,  22  Pick.  (Mass.)  526;  James  v.  Morey,  2  Cow.  (N.  Y.) 
246;  Brinkman  v.  Jones,  44  Wis.  498;  Den  d.  Skinner  v.  Cox,  15  N. 
C.  59. 

5T  Wallace  v.  Smith,  155  Pa.  St.  78,  35  Am.  St.  Rep.  868;  State 
Bank  of  O'Neill  v.  Mathews,  45  Neb.  659,  50  Am.  St.  Rep.  565;  Camp- 
hell  V.  Dearborn,  109  Mass.  130,  12  Am.  Rep.  671;  Cobb  v.  Day,  106 
Mo.  278;  Ahern  v.  McCarthy,  107  Cal.  382;  Scott  v.  Henry,  13  Ark. 
112;  McNeel's  Ex'rs  v.  Auldridge,  34  W.  Va.  748;  Knapp  v.  Bailey, 
79  Me.  195,  1  Am.  St.  Rep.  295;  Tower  v.  Fetz,  26  Neb.  706,  18  Am. 
St.  Rep.  795;  Winston  v.  Burnell,  44  Kan.  367,  21  Am.  St.  Rep.  289; 
Morrow  v.  Jones,  41  Neb.  867;  Horn  v.  Keteltas,  46  N.  Y.  605,  Finch's 
Cas.  1106;  Plumer  v.  Guthrie,  76  Pa.  St.  441;  Hannay  v.  Thompson, 
14  Tex.  142;  Hills  v.  Loomis,  42  Vt.  562. 

That  oral  evidence  is  not  admissible  for  this  purpose  in  a  court 
of  law,  see  Cotterell  v.  Purchase,  Cas.  temp.  Talb.  61,  Kirchwey's  Cas. 
175;  Inhabitants  of  Reading  v.  Inhabitants  of  Weston,  8  Conn.  117,  20 
Am.  Dec.  97,  Kirchwey's  Cas.  180;  Flint  v.  Sheldon,  13  Mass.  443; 
Stinchfield  v.  Milliken,  71  Me'.  567;  McClane  v.  White,  5  Minn.  178 
(Gil.  139);  Reilly  v.  Cullen,  159  Mo.  322;  Gates  v.  Sutherland,  76 
Mich.  231.  And  this  is  the  general  rule  in  states  in  which  the  line 
of  demarkation  between  equity  and  law  is  observed  with  considerable 
strictness.  That  such  evidence  is  admissible  at  law,  see  Swart  v. 
Service,  21  Wend.  (N.  Y.)  36,  Kirchwey's  Cas.  183;  Despard  v.  Wal- 
bridge,  15  N.  Y.  374,  Kirchwey's  Cas.  374,  and  (under  statute)  Ger- 
man Ins.  Co.  of  Freeport  v.  Gibe,  162  111.  251. 

In  Pennsylvania,  by  statute,  a  conveyance  made  since  June  6,  1881, 
cannot  be  shown  to  be  a  mortgage  by  oral  evidence.  Sankey  v.  Haw- 
ley,  118  Pa.  St.  30;  Wallace  v.  Smith,  155  Pa.  St.  78,  35  Am.  St.  Rep. 
868. 

(1179) 


§   512  REAL  PROPERTY.  •  rch.  35 

To  show  bj  oral  evidence,  however,  that  a  conveyance  ab- 
solute in  form  was  intended  to  be  a  mortgage,  the  evidence 
must  be  clear  and  convincing,  the  presumption  being  that  the 
instrument  is  what  it  purports  to  be.^^  In  the  case,  more- 
over, of  an  oral  defeasance,  as  in  the  case  of  a  separate  writ- 
ten defeasance,  a  purchaser  for  value  from  the  mortgagee  is 
not  affected  thereby  unless  he  has  notice  of  its  existence.^'' 

The  admission  of  evidence  for  the  purpose  of  showing  an 
absolute  conveyance  to  be  a  mortgage  is  evidently  an  excep- 
tion to  the  rule  which  excludes  extrinsic  evidence  to  vary  or 
control  a  written  instrument,  and  there  has  been  considerable 
discussion  as  to  the  principle  on  which  the  exception  to  the 
general  rule  can  be  allowed.  In  some  cases  the  right  to  in- 
troduce such  evidence  is  stated  to  exist  only  when  the  written 
defeasance  has  been  omitted  as  the  result  of  fraud,  accident, 
or  mistake,^*^  while  in  others  the  attempt  to  utilize  the  ab- 
solute conveyance  otherwise  than  as  a  mortgage,  contrary  to 
the  intention  of  the  parties,  is  regarded  as  itself  constituting 
a  fraud,  authorizing  the  introduction  of  oral  evidence  of  the 

sscoyle  v.  Davis,  116  U.  S.  108;  Corbit  v.  Smith,  7  Iowa,  60,  71 
Am.  Dec.  431;  Hogan  v.  Jaques,  19  N.  J.  Eq.  123,  97  Am.  Dec.  644; 
Winston  v.  Burnell,  44  Kan.  367,  21  Am.  St.  Rep.  289;  Waters  v.  Crab- 
tree,  105  N.  C.  394;  Mahoney  v.  Bostwick,  96  Cal.  53,  31  Am.  St.  Rep. 
175;  Perot  v.  Cooper,  17  Colo.  80,  31  Am.  St.  Rep.  258;  Keithley  v. 
Wood,  151  111.  566,  42  Am.  St.  Rep.  265;  Wallace  v.  Smith,  155  Pa.  St. 
78,  35  Am.  St.  Rep.  868. 

59  Jackson  v.  Lawrence,  117  U.  S.  679;  Conner  v.  Chase,  15  Vt.  775; 
Brophy  Min.  Co.  v.  Brophy  &  Dale  Gold  &  Silver  Min.  Co.,  15  Nev. 
110;  Frink  v.  Adams,  36  N.  J.  Eq.  485;  Meehan  v.  Forrester,  52  N. 
Y.  277;  Pancake  v.  Cauffman,  114  Pa.  St.  113;  Waters  v.  Crabtree, 
105  N.  C.  394.     See  Knapp  v.  Bailey,  79  Me.  195,  1  Am.  St.  Rep.  295. 

60  4  Kent's  Comm.  142;  Blakemore  v.  Byrnside,  7  Ark.  505;  Wash- 
burn V.  Merrills,  1  Day  (Conn.)  139;  Crutcher  v.  Muir,  90  Ky.  142, 
29  Am.  St.  Rep.  366;  Lokerson  v.  Stillwell,  13  N.  J.  Eq.  358;  Sprague 
V.  Bond,  115  N.  C.  530;  McClane  v.  White,  5  Minn.  178  (Gil.  139).  In 
Georgia,  the  statute  excludes  parol  evidence,  except  to  show  fraud 
in  procuring  the  mortgage.     Hall  v.  Waller,  66  Ga.  483. 

(1180) 


Ch.  35]  MORTGAGES.  §  572 

real  intention  of  the  parties.^ ^  The  courts,  however,  more 
usually,  at  the  present  day,  give  relief  by  treating  an  abso- 
lute conveyance  as  a  mortgage,  on  oral  evidence  to  that  effect, 
without  undertaking  to  base  it  upon  any  theory  of  fraud,  ac- 
cident, or  mistake,  but  rather  as  an  independent  head  of  equi- 
ty,^^  and  it  would  seem  that  the  recognition  of  a  right  to  such 
relief  is  an  almost  necessary  result  of  the  equitable  doctrine 
that  any  agreement  or  device  by  which  it  is  sought  to  defeat 
the  mortgagor's  right  of  redemption  is  invalid. 

Sale  with  right  of  repurchase. 


The  fact  that  an  absolute  conveyance  is  accompanied  by  an 
agreement,  or  is  subject  to  a  condition,  that  the  grantor  may 
repurchase  within  a  given  time,  at  the  same  or  a  different 
price,  is  not  conclusive  that  the  transaction  is  a  mortgage. 
Such  a  transaction  is  perfectly  valid  if  it  is  what  it  appears 
to  be,  and  the  right  to  repurchase  is  lost  if  not  exercised  with- 
in the  stipulated  time.^^  A  diflScult  question,  however,  fre- 
quently arises,  as  to  whether  a  transaction  in  form  a  condi- 
tional sale  is  not  in  fact  a  mortgage,  as  being  intended  to  se- 
cure the  payment  of  money,  and  a  court  of  equity  will  closely 
scrutinize  the  transaction  to  see  if  such  is  the  case,  and  will, 

61  Babcock  v.  Wyman,  19  How.  (U.  S.)  289;  Hershey  v.  Luce,  56 
Ark.  320;  Pierce  v.  Robinson,  13  Cal.  116;  O'Neill  v.  Capelle,  62  Mo. 
202;  Wallace  v.  Smith,  155  Pa.  St.  78,  35  Am.  St.  Rep.  868;  Wright 
V.  Bates,  13  Vt.  341.  See  Ruckman  v.  Alwood,  71  111.  155;  Hassam 
V.  Barrett,  115  Mass.  256;  3  Pomeroy,  Eq.  Jur.  §  1196. 

62  See  Ruckman  v.  Alwood,  71  111.  155,  quoted  in  Kirchwey's  Gas. 
200. 

63  4  Kent's  Gomm.  144;  Pomeroy,  Eq.  Jur.  §  1195;  Thornborough 
V.  Baker,  3  Swanst.  631,  Kirchwey's  Gas.  147;  Barrell  v.  Sabine,  1 
Vern,  268;   Conway's  Executors  &  Devisees  v.  Alexander,  7  Granch 

(U.  S.)  218,  Kirchwey's  Gas.  151;  Horbach  v.  Hill,  112  U.  S.  144; 
Macaulay  v.  Porter,  71  N.  Y.  173;  Moss  v.  Green,  10  Leigh  (Va.)  251, 
34  Am.  Dec.  731;  Rue  v.  Dole,  107  111.  275;  Flagg  v.  Mann.  14  Pick. 
(Mass.)  467,  478^  Ruffier  v.  Womack,  30  Tex.  332. 

(1181) 


t^   512  I^EAL  PROPERTY.  [Ch.    35 

if  it  appears  to  be  such,  give  the  grantor  the  right  to  redeem, 
with  any  other  rights  which  belong  to  a  mortgagor.  In  case 
of  doubt,  the  courts  incline  to  consider  the  transaction  a  mort- 
gage,^"* thus  applying  a  different  rule  from  that  applied  to 
an  absolute  conveyance  not  accompanied  by  an  agreement  for 
repurchase. 

Considerations  determining  character  of  conveyance. 


In  determining  the  question  whether  an  absolute  convey- 
ance is  a  mortgage, — whether  there  is  or  is  not  an  agreement 
giving  the  right  of  repurchase, — the  fact  that  an  indebtedness 
on  the  part  of  the  grantor  to  the  grantee  is  created  by  the 
transaction,  or  that  a  former  indebtedness  is  thereby  contin- 
ued in  force,  is  usually  conclusive  that  it  is  a  mortgage. '^^ 
The  absence  of  a  covenant  or  other  express  agreement  to  repay 
the  money  is  not,  however,  conclusive  that  the  conveyance  is 
not  a  mortgage.*^^     Among  the  other  circumstances  tending 

64  Conway's  Executors  &  Devisees  v.  Alexander,  7  Cranch  (U.  S.) 
218,  Kirchwey's  Cas.  151;  Russell  v.  Southard,  12  How.  (U.  S.)  139, 
Kirchwey's  Cas.  157;  Cosby  v.  Buchanan,  81  Ala.  574;  Farmer  v. 
Grose,  42  Cal.  169;  Matthews  v.  Sheehan,  69  N.  Y.  585;  Trucks  v. 
Lindsey,  18  Iowa,  504;  Poindexter  v.  McCannon,  16  N.  C.  373,  18  Am. 
Dec.  591;  Edrington  v.  Harper,  3  J.  J.  Marsh.  (Ky.)  354,  20  Am.  Dec. 
145;  Keithley  v.  Wood,  151  111.  566,  42  Am.  St.  Rep.  265;  O'Neill  v. 
Capelle,  62  Mo.  202. 

65  4  Kent's  Ccmm.  144;  3  Pomeroy,  Eq.  Jur.  §  1195;  Flagg  v.  Mann, 
2  Sumn.  486,  Fed.  Cas.  No.  4,847,  Kirchwey's  Cas.  167;  Conway's 
Executors  &  Devisees  v.  Alexander,  7  Cranch  (U.  S.)  237,  Kirchwey's 
Cas.  151;  Slowey  v.  McMurray,  27  Mo.  113,  72  Am.  Dec.  251;  Keith- 
ley  V.  Wood,  151  111.  566,  42  Am.  St.  Rep.  265;  Montgomery  v.  Spect, 
55  Cal.  352;  Wallace  v.  Smith,  155  Pa.  St.  78,  35  Am.  St.  Rep.  868; 
Hopper  V.  Smyser,  90  Md.  363;  Fisher  v.  Green,  142  111.  80. 

GG  Matthews  v.  Sheehan,  69  N.  Y.  585,  Kirchwey's  Cas.  164;  Floyer 
v.  Lavington,  1  P.  Wms.  268;  Russell  v.  Southard,  12  How.  (U.  S.) 
139,  Kirchwey's  Cas.  157;  Flagg  v.  Mann,  2  Sumn.  486,  Fed.  Cas.  No. 
4,847,  Kirchwey's  Cas.  167;  Brown  v.  Dewe,  1  Sandf.  Ch.  (N.  Y.)  57; 
Campbell  v.  Dearborn,  109  Mass.  130,  12  Am.  Rep.  671,  Kirchwey's 
Cas.  191;  Horn  v.  Keteltas,  46  N.  Y.  605,  Finch's  Cas.  1106. 

(1182) 


Ch.    35]  MORTGAGES.  §  513 

to  show  that  the  transaction  is  a  mortgage,  and  not  an  absolute 
conveyance,  are  the  inadequacy  of  the  sum  paid  by  the  gran- 
tee to  the  grantor  as  a  consideration  for  the  land,  and  the 
fact  that  the  grantor  remained  in  possession.^''' 

§  513.     The  obligation  secured. 

A  mortgage  is  usually  given  to  secure  the  payment  of  a 
sum  of  money,  and  the  debt  is  usually  evidenced  by  a  note, 
bond,  or  other  instrument,  separate  from  the  mortgage, 
though  this  is  not  necessary.^® 

Except  as  against  creditors  who  may  be  defrauded  thereby, 
a  mortgage  securing  in  terms  the  payment  of  a  sum  of  money 
is  valid,  although  the  mortgagor  received  no  part  of  such  sum, 
or  any  other  consideration  for  the  making  of  the  mortgage, 
the  owner  of  land  having  the  same  right  to  make  a  present  of 
a  mortgage  on  the  land  as  to  give  the  land  itself.^^  So  the 
mortgage  may  be  given  to  secure  the  payment  of  a  debt  which 
existed  before  the  making  of  the  mortgage  ;^*'  but  in  such  a 

67  Conway's  Executors  &  Devisees  v.  Alexander,  7  Cranch  (U.  S.) 
218,  Kirchwey's  Gas.  151;  Russell  v.  Southard,  12  How.  (U.  S.)  139, 
Kirchwey's  Gas.  157;  Flagg  v.  Mann,  2  Sumn.  486,  Fed.  Gas.  No.  4,847, 
Kirchwey's  Gas.  167;  Bacon  v.  Brown,  19  Gonn.  34;  Hoffman  v.  Ryan, 
21  W.  Va.  417;  Williams  v.  Reggan,  111  Ala.  621;  Go.  Litt.  205a,  But- 
ler's note. 

68  Gonway's  Executors  &  Devisees  v.  Alexander,  7  Granch  (U.  S.) 
218;  Hickox  v.  Lowe,  10  Gal.  197;  Jacques  v.  Weeks,  7  Watts  (Pa.) 
268;  Smith  v.  People's  Bank,  24  Me.  185;  Hodgdon  v.  Shannon,  44  N. 
H.  572;  Eacho  v.  Gosby,  26  Grat.  (Va.)  112;  Rice  v.  Rice,  4  Pick. 
(Mass.)  349. 

69Bucklin  v.  Bucklin,  1  Abb.  Dec.  (N.  Y.)  242,  Kirchwey's  Gas. 
203;  Gampbell  v.  Tompkins,  32  N.  J.  Eq.  170;  Brooks  v.  Dalrymple,  12 
Allen  (Mass.)  102;  Brigham  v.  Brown,  44  Mich.  59. 

70  Morse  v.  Godfrey,  3  Story,  364,  Fed.  Gas.  No.  9,856;  Gafford  v. 
Stearns,  51  Ala.  434;  Rea  v.  Wilson,  112  Iowa,  517;  De  Lancey  v. 
Stearns,  66  N.  Y.  157;  Ghaffee  v.  Atlas  Lumber  Go.,  43  Neb.  2:i4,  47 
Am.  St.  Rep.  753;  Mingus  v.  Gondit,  23  N.  J.  Eq.  313;  1  Jones,  Mort- 
gages, §  460. 

(1183) 


§  513  REAL  PROPERTY.  [Ch.  35 

case  the  mortgagee  is  not  usually  regarded  as  a  purchaser  for 
value,  unless  some  additional  consideration  is  given,  and  con- 
sequently is  not  protected  as  against  a  prior  conveyance  of 
which  he  had  no  notice.''^-^ 

Description  of  obligation. 

A  mortgage  given  to  secure  a  debt  existent  at  the  making  of 
the  mortgage,  or  contemporaneous  therewith,  is  valid,  even 
as  against  subsequent  purchasers  and  creditors,  although  it 
does  not  explicitly  state  the  amount  of  such  debt  or  liability, 
provided  there  are  means  of  ascertaining  such  amount.'^^ 
And  extrinsic  evidence  is  admissible  for  the  purpose  of  show- 
ing the  debt  which  the  mortgage  was  intended  to  secure.'^^ 
The  statement  in  the  mortgage  as  to  the  sum  secured  is  not 
conclusive  in  that  regard,  and  it  may  be  shown  by  the  mort- 
gagor that  the  lien  was  for  a  less  sum,^^  or  even  that  the  mort- 
al Morse  V.  Godfrey,  3  Story,  364,  Fed.  Cas.  No.  9,856;  Gafford  v. 
Stearns,  51  Ala.  434;  Mingus  v.  Condit,  23  N.  J.  Eq.  313;  De  Lancey 
V.  Stearns,  66  N.  Y.  157;  Lewis  v.  Anderson,  20  Ohio  St.  281;  ScJiump- 
ert  V.  Dillard,  55  Miss.  348;  Gilchrist  v.  Gough,  63  Ind.  576,  30  Am. 
Rep.  250. 

72  Stoughton  V.  Pasco,  5  Conn.  442,  13  Am.  Dec.  72,  Kirchwey's  Cas. 
268;  Robinson  v.  Williams,  22  N.  Y.  380,  Kirchwey's  Cas.  274;  Youngs 
V.  Wilson,  27  N.  Y.  351,  Kirchwey's  Cas.  280;  Merrills  v.  Swift,  18 
Conn.  257,  46  Am.  Dec.  315;  New  v.  Sailors,  114  Ind.  407,  5  Am.  St. 
Rep.  632;  Bowen  v.  Ratcliff,  140  Ind.  393,  49  Am.  St.  Rep.  203;  Bul- 
lock V.  Battenhousen,  108  111.  28;  Clark  v.  Hyman,  55  Iowa,  14,  39 
Am.  Rep.  160;  Shirras  v.  Caig,  7  Cranch  (U.  S.)  34;  Hurd  v.  Robin- 
son, 11  Ohio  St.  232. 

■73  Doe  d.  Duval's  Heirs  v.  McLoskey,  1  Ala.  708;  Aull  v.  Lee,  61  Mo. 
160;  Babcock  v.  Lisk,  57  111.  327;  Moses  v.  Hatfield,  27  S.  C.  324;  Wil- 
liams V.  Hilton,  35  Me.  547,  58  Am.  Dec.  729;  Hurd  v.  Robinson,  11  Ohio 
St.  232;  Wilson  v.  Russell,  13  Md.  494,  71  Am.  Dec.  645;  Boody  v.  Davis 
20  N.  H.  140,  51  Am.  Dec.  210;  Baxter  v.  Mclntire,  13  Gray  (Mass.) 
168.  In  some  jurisdictions,  however,  the  statute  requires  a  specific 
description  of  the  debt.  See  Mans  v.  McKellip,  38  Md.  231;  Page  v. 
Ordway,  40  N.  H.  253. 

T4Mackey  v.  Brownfield,  13  Serg.  &  R.  (Pa.)  239;  Nazro  v.  Ware, 

(1184) 


Ch.  35]  MORTGAGES.  §  513 

gage  was  not  a  lien  for  the  payment  of  money,  as  stated  there- 
in, but  was  given  for  a  different  purpose. '^^ 

A  mortgage  which  is  in  terms  security  for  a  certain  amount 
cannot,  as  against  third  persons,  be  extended  by  agreement 
between  the  mortgagor  and  mortgagee  so  as  to  cover  sums 
subsequently  advanced  by  the  latter  to  the  former.'^^  But, 
as  between  the  parties  to  the  mortgage,  a  written  agreement, 
made  after  its  execution,  that  it  shall  be  security  for  a  debt 
other  than  that  which  it  was  first  intended  to  secure,  is  ef- 
fective,^^ this  constituting  in  effect  an  equitable  lien  on  the 
land  for  such  additional  sum.'^® 

Future  advances. 


A  mortgage  given  to  secure  advances  to  be  made  in  the  fu- 
ture to  the  mortgagor,  or  liabilities  to  be  assumed  for  him 
by  the  mortgagee  in  the  future,  is  valid  even  as  against  cred- 
itors and  subsequent  purchasers.'^^       It  is,  by  the  weight  of 

38  Minn.  443;  Burnett  v.  Wright,  135  N.  Y.  543;  Louisville  Banking 
Co.  V.  Leonard,  90  Ky.  106;  Ruloff  v.  Hazen,  124  Mich.  570;  Huckaba 
V.  Abbott,  87  Ala.  409. 

"5  Baird  v.  Baird,  145  N.  Y.  659,  Kirchwey's  Cas.  211;  Hill  v.  Hoole, 
116  N.  Y.  299;  Wearse  v.  Peirce,  24  Pick.  (Mass.)  141;  Hannan  v. 
Hannan,  123  Mass.  441;  Saunders  v.  Dunn,  174  Mass.  164;  Holsman 
V.  Boiling  Spring  Bleaching  Co.,  14  N.  J.  Eq.  335. 

TG  Schiffer  v.  Feagin,  51  Ala.  335;  Fuller  v.  Griffith,  91  Iowa,  632; 
Stone  V.  Lane,  10  Allen  (Mass.)  74;  Bramhall  v.  Flood,  41  Conn.  68; 
Lee  V.  Stone,  5  Gill  &  J.  (Md.)  1;  McCaughrin  v.  Williams,  15  S.  C. 
505;  Large  v.  Van  Doren,  14  N.  J.  Eq.  208;  McGready  v.  McGready, 
17  Mo.  597. 

"See  Wylly  v.  Screven,  98  Ga.  213;  Stoddard  v.  Hart,  23  N.  Y. 
556,  Kirchwey's  Cas.  116.  An  oral  agreement  to  this  effect  is  in- 
sufficient, it  would  seem,  under  the  Statute  of  Frauds,  and  it  has  been 
so  decided.  Stoddard  v.  Hart,  23  N.  Y.  556,  Kirchwey's  Cas.  116; 
Johnson  v.  Anderson,  30  Ark.  745;  Ex  parte  Hooper,  19  Ves.  477,  1 
Mer.  7,  Kirchwey's  Cas.  114.  Contra,  Walker  v.  Walker,  17  S.  C. 
329.     And  see  Brown  v.  Gaffney,  32  111.  251. 

78  See  post,  §  561. 

79  Shirras  v.  Caig,  7  Cranch   (U.  S.)   34;  United  States  v.  Hooe,  3 

(1185) 
Real  Prop. — 75. 


§   513  REAL  PROPERTY.  [Ch.  35 

authority,  sufficient  if  the  mortgage  states  that  it  is  to  secure 
future  advances,  without  stating  the  total  amount  of  such  ad- 
vances, since  a  subsequent  purchaser  or  incumbrancer  is  there- 
by put  on  inquiry  as  to  the  debt  secured  f^  and  the  failure  to 
state  that  future  advances  are  secured  is  immaterial  if  the 
total  amount  of  the  debt  secured  is  named.*^ 

A  mortgage  securing  future  advances  is  valid,  as  against 
creditors  and  purchasers,  to  the  amount  to  Avhich  advances 
have  been  made  before  the  mortgagee  obtains  knowledge  of  the 
accrual  of  the  rights  of  such  third  persons.^^  As  to  whether 
the  mortgagee  is  affected  with  knowledge  of  a  subsequent 

Cranch  (U.  S.)  73;  Boswell  v.  Goodwin,  31  Conn.  74,  81  Am.  Dec.  169; 
Robinson  v.  Williams,  22  N.  Y.  380,  Kirchwey's  Cas.  274;  Tally  v. 
Harloe,  35  Cal.  302,  95  Am.  Dec.  102;  Commercial  Bank  v.  Cunning- 
ham, 24  Pick.  (Mass.)  270,  35  Am.  Dec.  322;  Summers  v.  Roos,  42 
Miss.  749,  2  Am.  Rep.  653;  McDaniels  v.  Colvin,  16  Vt.  300,  42  Am. 
Dec.  512;  James  v.  Morey,  2  Cow.  (N.  Y.)  246,  14  Am.  Dec.  475; 
Jones  V.  Guaranty  &  Indemnity  Co.,  101  U.  S.  622;  Kramer  v.  Trus- 
tees of  Farmers'  &  Mechanics'  Bank  of  Steubenville,  15  Ohio,  253; 
Nicklin  v.  Betts  Spring  Co.,  11  Or.  406,  50  Am.  Rep.  477;  Collins  v. 
Carlile,  13  111.  254. 

80  Jarratt  v.  McDaniel,  32  Ark.  598;  Allen  v.  Lathrop,  46  Ga.  133; 
Witczinski  v.  Everman,  51  Miss.  841;  Michigan  Ins.  Co.  of  Detroit 
V.  Brown,  11  Mich.  266;  Robinson  v.  Williams,  22  N.  Y.  381.  Contra, 
Pettibone  v.  Griswold,  4  Conn.  158,  10  Am.  Dec.  106,  Kirchwey's  Cas. 
265.     See  Tully  v.  Harloe,  35  Cal.  302,  95  Am.  Dec.  102. 

In  some  states  there  are  statutory  provisions,  requiring  the  debt 
secured  to  be  described  in  the  mortgage,  which  restrict  the  right  to 
make  mortgages  for  future  advances.  See  1  Jones,  Mortgages,  §  366; 
Wilson  V.  Russell,  13  Md.  494,  71  Am.  Dec.  645;  Maus  v.  McKellip, 
38  Md.  231;  Johnson  v.  Richardson,  38  N.  Y.  353. 

81  Shirras  v.  Caig,  7  Cranch  (U.  S.)  34;  Summers  v.  Roos,  42  Miss. 
749,  2  Am.  Rep.  653;  Collins  v.  Carlile,  13  111.  254;  Louisville  Bank- 
ing Co.  V.  Leonard,  90  Ky.  106;  Poster  v.  Reynolds,  38  Mo.  553; 
Griffin  v.  New  Jersey  Oil  Co.,  11  J\.  J.  Eq.  49;  Tully  v.  Harloe,  35 
Cal.  302,  95  Am.  Dec.  102. 

82  Shirras  v.  Caig,  7  Cranch  (U.  S.)  51;  Hopkinson  v.  Rolt,  9  H.  L. 
Cas.  514;  Boswell  v.  Goodwin,  31  Conn.  74;  Griffin  v.  New  Jersey 
Oil  Co.,  11  N.  J.  Eq.  49;  Spader  v.  Lawler,  17  Ohio,  371,  49  Am.  Dec. 
461;  and  cases  cited  in  two  notes  next  following. 

(1186) 


Ch.  35]  MORTGAGES.  §   513 

mortgage  or  other  incumbrance,  within  the  rule,  by  the  re- 
cording of  such  mortgage,  the  authorities  are  in  conflict. 
Some  decisions  are  to  the  effect  that  he  is  not  so  charged  with 
notice,  and  consequently  may  with  safety  make  advances  until 
lie  has  actual  knowledge  of  such  subsequent  incumbrance,** 
while  others  hold  that  the  mortgage  constitutes  a  lien  for 
each  advance,  at  least  when  the  making  of  advances  is  volun- 
tary, only  when  the  advance  is  made,  and  that  an  incumbrance 
appearing  of  record  before  the  making  of  any  advance  takes 
precedence  thereof,  the  mortgagee  being  thus  bound  to  con- 
sult the  records  before  making  any  advance.®* 

There  are  a  number  of  decisions  to  the  effect  that,  even 
though  the  advances  are  made  with  knowledge  of  an  incum- 
brance accruing  since  the  date  of  the  mortgage  in  favor  of 
a  third  person,  they  take  precedence  thereof,  provided  the 
making  of  such  advances  was  not  optional  with  the  mortgagee, 
but  he  was  bound  by  contract  to  make  them.*°  And  in  at 
least  one  case  it  is  decided  that  any  mortgage  purporting  to 
secure  future  advances  is  security  for  the  advances  when 
made,  even  as  against  an  incumbrance  of  which  the  mortgagee 
has  notice,  since  the  owner  of  the  incumbrance  has  notice, 
from  the  record,  of  the  possibility  that  such  advances  will  bo 
made.®* 

83Ackennan  v.  Hunsicker,  85  N.  Y.  43,  39  Am.  Rep.  621;  Frye  v. 
Bank  of  Illinois,  11  111.  367;  Ward  v.  Cooke,  17  N.  J.  Eq.  93;  Mc- 
Daniels  v.  Colvin,  16  Vt.  300,  42  Am.  Dec.  512;  Union  Nat.  Bank  v. 
Milburn,  etc.,  Co.,  7  N.  D.  201;  3  Pomeroy,  Eq.  Jur.  §  1199. 

84Ladue  v.  Detroit  &  M.  R.  Co..  13  Mich.  380,  87  Am.  Dec.  759; 
Spader  v.  Lawler,  17  Ohio,  371,  49  Am.  Dec.  461;  Bank  of  Montgom- 
ery County's  Appeal,  36  Pa.  St.  170. 

s5  Boswell  V.  Goodwin,  31  Conn.  74;  Brinckmeyer  v.  Browneller, 
55  Ind.  487;  Heintze  v.  Bentley,  34  N.  J.  Eq.  562;  Ripley  v.  Harris, 
3  Biss.  199,  Fed.  Cas.  No.  11,853.  See  McClure  v.  Roman,  52  Pa.  St. 
458. 

86  Witczinski  v.  Everman,  51  Miss.  841.     This  view  is  supported 

(1187) 


§  513  REAL  PROPERTY.  [Ch.   35 

Mortgage  to  indemnify  surety. 

A  mortgage  is  quite  frequently  made  for  the  purpose  of  se- 
curing a  guarantor  or  surety  against  loss  by  reason  of  his  con- 
tract of  guaranty  or  suretyship.  Such  a  mortgage  is,  in  its 
general  effect,  similar  to  one  made  to  secure  future  advances, 
and  is  governed  by  the  same  rules. 

Change  in  amount  or  evidence  of  obligation. 


Provided  the  debt  secured  remains  the  same,  the  fact  that 
the  evidence  thereof  is  changed,  as  by  the  substitution  of  one 
note  for  another,  or  the  giving  of  a  renewal  note,  does  not 
affect  the  validity  of  the  mortgage,^ ^  and  the  amount  of  the 
debt  may  be  changed,  provided  the  sum  originally  secured  is 
not  exceeded.*^  The  fact  that  the  substituted  note  differs 
otherwise  than  in  amount  from  the  original  note  is  immate- 
rial f^  and  an  instrument  of  an  entirely  different  character 
may  be  substituted,  provided  the  actual  obligation  secured  by 
the  mortgage  remains  the  same.^*^  Accordingly,  the  fact  that 
the  mortgage  debt  is  merged  in  a  judgment  for  the  debt  does 
not  affect  the  lien  of  the  mortgage  as  security  for  the  debt.®^ 

by  Mr.  Pomeroy,  who  discusses  the  whole  question  with  his  usual 
clearness  and  acumen.    See  3  Pomeroy,  Eq.  Jur.  §§  1197-1199. 

87  Brinckerhoff  v.  Lansing,  4  Johns.  Ch.  (N.  Y.)  65,  8  Am.  Dec. 
538,  Kirchwey's  Cas.  742;  Dunham  v.  Dey,  15  Johns.  (N.  Y.)  554, 
8  Am.  Dec.  282;  Dumell  v.  Terstegge.  23  Ind.  397,  85  Am.  Dec.  466; 
Bolles  V.  Chauncey,  8  Conn.  389;  Cullum  v.  Branch  Bank  at  Mobile, 
23  Ala.  797;  Flower  v.  Elwood,  66  111.  446;  London  &  San  Francisco 
Bank  v.  Bandmann,  120  Cal.  220,  65  Am.  St.  Rep.  179;  Taber  v.  Ham- 
lin, 97  Mass.  489.  93  Am.  Dec.  113. 

88  Brinckerhoff  v.  Lansing,  4  Johns.  Ch.  (N.  Y.)  65,  8  Am.  Dec. 
538,  Kirchwey's  Cas.  742;  Chase  v.  Abbott,  20  Iowa,  154;  McDonald 
V.  McDonald,  16  Vt.  630;  Walters  v.  Walters,  73  Ind.  425. 

89  Pond  V.  Clarke,  14  Conn.  334;  Darst  v.  Bates,  51  111.  439;  Pom- 
roy  V.  Rice,  16  Pick.  (Mass.)  22;  Port  v.  Robbins,  35  Iowa,  208. 

90  Davis  V.  Maynard,  9  Mass.  242;  Hugunin  v.  Starkweather,  10 
111.  492. 

91  Priest  V.  Wheelock,  58  111.  116;   Jewett  v.  Hamlin,  68  Me.  172; 

(1188) 


Oh.  35]  MORTGAGES.  §  5I3 

— — Personal  liability  of  mortgagor. 

The  mortgagor  is  personally  liable  for  the  amount  of  the 
mortgage  debt,  as  a  rule,  by  reason  of  his  signature  on  the 
note  or  bond  evidencing  the  debt,  and  sometimes  by  force  of  a 
covenant  in  the  mortgage  to  pay  the  debt,  but  such  liability 
is  not  necessary  to  the  validity  of  the  mortgage.^"  According- 
ly, a  mortgage  by  a  married  woman  has  been  held  to  be  valid 
and  enforceable,  though  she  could  not  be  made  liable  person- 
ally for  the  debt  f^  and,  in  the  majority  of  states,  the  mort- 
gage remains  valid,  though  an  action  to  enforce  the  personal 
liability  of  the  mortgagor  is  barred  by  limitations.^^  So, 
the  fact  that  the  maker  of  the  note  secured  has  been  dischar- 
ged from  personal  liability  in  a  bankruptcy  proceeding  does 
not  affect  the  lien  of  the  mortgage  nor  the  right  to  enforce  it.** 

Mortgage  to  secure  support. 


As  stated  in  the  definition  of  a  mortgage,  it  may  be  made 
to  secure  the  performance  of  an  obligation  other  than  the 
payment  of  money.  Among  the  occasional  mortgages  of 
this  character  may  be  mentioned  those  by  w^hich  the  mort- 
gagor secures  the  performance  of  his  contract  to  support  the 
mortgagee  or  another  person  during  his  life.  While  such 
conveyances  are  usually  spoken  of  as  mortgages,^®  in  some 

Torrey  v.  Cook,  116  Mass.  163;   Morrison  v.  Morrison,  38  Iowa,  73. 
See  Butler  v.  Miller,  1  N.  Y.  496,  Kirchwey's  Cas.  746. 

92  Floyer  v.  Lavington,  1  P.  Wms.  268;  Mills  v.  Darling,  43  Me. 
565;  Rice  v.  Rice,  4  Pick.  (Mass.)  349;  Glover  v.  Payn,  19  Wend. 
(N.  Y.)   518;  Davis  v.  Demming,  12  W.  Va.  246. 

93  Brookings  v.  White,  49  Me.  479;  Van  Cott  v.  Heath,  9  Wis.  516; 
Haffey  v.  Carey,  73  Pa.  St.  431.  See,  to  the  contrary,  Heburn  v. 
Warner,  112  Mass.  271,  17  Am.  Rep.  86,  criticised  in  10  Am.  Law 
Rev.  371. 

94  See  post,  §  549. 

95  Bush  V.  Cooper,  26  Miss.  599,  Kirchwey's  Cas.  750;  Brown  v. 
Hoover,  77  N.  C.  40;   2  Jones,  Mortgages,  §  1231. 

90  Chase  v.  Peck,  21  N.  Y.  581,  Kirchwey's  Cas.  124;  Gilson  v.  Gil- 

(1189) 


§   514  REAL  PROPERTY.  [Ch.  35 

states  it  is  denied  that  they  have  any  mortgage  character,  and 
they  are  regarded  rather  as  conveyances  on  condition.^^  Oc- 
casionally, in  case  of  nonperformance  of  the  stipulation  for 
support,  the  right  of  redemption  by  payment  of  adequate  dam- 
ages has  been  recognized.^^  Such  an  agreement  is  prima  fa- 
cie of  a  personal  character,  and  consequently  the  mortgagor 
cannot,  by  transferring  the  property,  relieve  himself  of  the  ob- 
ligation of  support,  and  place  it  on  another  person,^^  nor  can 
the  mortgagee,  if  he  is  the  person  to  be  supported,  transfer 
his  interest  in  the  mortgage,  so  as  to  give  another  the  right  to 
such  support.^ ^° 

§  514.     Illegality  of  purpose  of  mortgage. 

If  the  mortgage  is  given  for  an  illegal  purpose,  as  when 
it  is  the  price  of  future  sexual  intercourse,^"^  or  when  it  is 

son,  2  Allen  (Mass.)  115;  Coleman  v.  Whitney,  62  Vt.  123;  Powers 
V.  Patten,  71  Me.  583;  Hawkins  v.  Clermont,  15  Mich.  511.  See  1 
Jones,  Mortgages,  §§  388-394. 

97  Bethlehem  v.  Annis,  40  N.  H.  34,  77  Am.  Dec.  700;  Soper  v. 
Guernsey,  71  Pa.  St.  219. 

98  See  Henry  v.  Tupper,  29  Vt.  358;  Bethlehem  v.  Annis,  40  N.  H. 
34,  77  Am.  Dec.  700. 

Sometimes,  when  the  agreement  for  support  was  the  considera- 
tion for  the  conveyance  of  the  land  to  the  mortgagor  by  the  mort- 
gagee, the  forfeiture  has  been  strictly  enforced.  Soper  v.  Guern- 
sey, 71  Pa.  St.  219;  Bogie  v.  Bogie,  41  Wis.  209. 

99  Bryant  v.  Erskine,  55  Me.  153;  Bethlehem  v.  Annis,  40  N.  H. 
34,  77  Am.  Dec.  700;  Flanders  v.  Lamphear,  9  N.  H.  201.  Compare 
Bodwell  Granite  Co.  v.  Lane,  83  me.  168. 

100  Bethlehem  v.  Annis,  40  N.  H.  34,  77  Am.  Dee.  700;  Bryant  v. 
Erskine,  55  Me.  153. 

101  w V.  B ,  32  Beav.  574,  Kirchwey's  Cas.  219. 

A  mortgage  given  in  consideration  of  past  sexual  intercourse  would 
be  a  valid  lien,  since  such  intercourse  is  regarded,  not  as  an  illegal 
consideration,  but  as  no  consideration  (Pollock,  Cont.  [6th  Ed.]  288), 
and  a  consideration  is  unnecessary  to  support  a  mortgage,  and,  even 
though  a  consideration  were  necessary,  a  seal  would  be  sufficient. 

(1190) 


Ch.  35]  MORTGAGES.  §  5I4 

given  to  obtain  the  suppression  of  a  criminal  prosecution,^ '^^ 
neither  party  can  obtain  relief  in  connection  therewith  by 
means  of  a  legal  proceeding;  that  is,  the  mortgagee  cannot 
enforce  the  mortgage,^ ^^  nor  can  the  mortgagor  have  it  can- 
celed.^^^  So,  a  mortgage  given  to  secure  a  debt  incurred  for 
liquor  sold  in  violation  of  law,^*^^  or  a  gambling  debt,'""  will 
not  be  enforced.  And  a  mortgage  securing  notes  given  in  con- 
sideration of  a  payment  of  money  of  the  Confederate  States 
has  been  held  to  be  illegal  and  unenforceable. ^*^'^ 

When  the  purpose  of  a  mortgage  is  to  secure  pa}T2ient  of  a 
debt  which  is  composed-  partly  of  legal  and  partly  of  illegal 
items,  if  those  which  are  legal .  can  be  separated  from  the 
balance,  the  mortgage  will  be  upheld  as  to  them.'"^  So,  a 
mortgage  undertaking  to  secure  two  or  more  notes  has  been 
upheld  as  security  for  a  legal  note,  though  invalid  as  to  an 
illegal  note.^'^^     But  a  mortgage  securing  but  one  note,  if  that 

See  Gray  v.  Mathias,  5  Ves.  286;  Vallance  v.  Blagden,  26  Ch.  Div. 
353;  Brown  v.  Kinsey,  81  N.  C.  245;  Wyant  v.  Lesher,  23  Pa.  St.  338. 
io2Atwoocl  V.  Fisk,  101  Mass.  363,  Kirchwey's  Gas.  253;  Pearce  v. 
Wilson,  111  Pa.  St.  14,  56  Am.  Rep.  243;  Peed  v.  McKee,  42  Iowa, 
689. 

103  McQuade  v.  Rosecrans,  36  Ohio  St.  442,  Kirchwey's  Gas.  248; 
Gilbert  v.  Holmes,  64  111.  548;  Hyatt  v.  James'  Adm'r,  2  Bush  (Ky.) 
463,  92  Am.  Dec.  505. 

After  foreclosure,  however,  of  a  mortgage  given  for  an  illegal  debt, 
even  though  the  mortgagee  obtains  the  title  to  the  land  under  the 
foreclosure,  the  mortgagor  cannot  recover  the  land,  in  the  absence 
of  specific  statutory  authority  therefor,  the  same  rule  applying  as 
in  the  case  of  an  absolute  conveyance  of  land  on  an  illegal  consid- 
eration.    McLaughlin  v.  Cosgrove,  99  Mass.  4,  Kirchwey's  Gas.  252. 

104  Atwood  V.  Fisk,  101  Mass.  363,  Kirchwey's  Gas.  253. 

105  Baker  v.  Gollins,  9  Allen   (Mass.)   253. 

106  International  Bank  of  Ghicago  v.  Vankirk,  39  111.  App.  23; 
Barnard  v.  Backhaus,  52  Wis.   593. 

10-  Stillman  v.  Looney,  3  Gold.    (Tenn.)    20,  Kirchwey's  Gas.  251. 
Gontra,  Scheible  v.  Bacho,  41  Ala.  423. 
108 1  Jones,  Mortgages,  §  620. 
109  Morris  v.  Way,  16  Ohio,  469. 

(1191) 


§   515  REAL  PROPERTY.  TQ^^   35 

note  is  based  in  part  on  an  illegal  consideration,  would  seem 
to  be  void,  since  the  note  is  void  as  a  whole.^^^ 

At  the  present  day,  in  but  few  of  the  states  is  a  mortgage 
totally  invalid  because  it  is  security  for  a  debt  bearing  an. 
illegal  rate  of  interest ;  it  being  more  usually  provided  merely 
that  the  usurious  interest  shall  be  forfeited,  or,  in  some  states, 
all  interest.  In  a  number  of  states  there  is  no  restriction 
upon  the  rate  of  interest.^ ^^ 

§  515.     Agreements  for  collateral  advantage. 

There  are,  in  decisions  rendered  in  England  and  Ireland, 
dicta  to  the  effect  that,  if  the  making  of  a  mortgage  is  accom- 
panied by  an  agreement  in  reference  either  to  the  mortgaged 
premises  or  to  another  subject,  by  which  the  mortgagor  obtains 
some  "collateral  advantage,"  such  agreement  is  void.^^^  This 
theory  has,  however,  been  exploded  by  recent  decisions,  and 
the  rule  established  that  any  agreement  between  the  mortgagor 
and  mortgagee,  however  advantageous  to  the  latter,  if  not 
attended  with  fraud  or  oppression,  is  valid,  provided  it  does 
not  interfere  with  the  right  of  redeeming  from  the  mort- 
gage."^     So,  in  this  country  it  has  been  decided,  in  at  least 

110  McQuade  v.  Rosecrans,  36  Ohio  St.  442,  Kirchwey's  Cas.  248; 
Brigham  v.  Potter,  14  Gray  (Mass.)  522;  Bick  v.  Seal,  45  Mo.  App. 
475.  But  in  Shaw  v.  Carpenter,  54  Vt.  155,  Kirchwey's  Cas.  256,  it 
was  held  that,  in  such  a  case,  the  mortgage  was  valid  to  the  extent 
to  which  the  consideration  for  the  note  was  legal,  such  part  of  the 
consideration  being,  by  well-settled  principles,  recoverable  by  the 
proper  action,  without  reference  to  the  note.  See  1  Daniel,  Neg. 
Inst.  (4th  Ed.)  §  204. 

111  See  1  Jones,  Mortgages,  §  633  et  seq. 

11^  See  Coote,  Mortgages,  19,  20;  Jennings  v.  Ward,  2  Vern.  520, 
Kirchwey's  Cas.  471;  In  re  Edwards'  Estate,  11  Ir.  Ch.  367,  Kirch- 
wey's Cas.  471;  Broad  v.  Selfe,  11  Wkly.  Rep.  1036,  Kirchwey's  Cas. 
473. 

11-  Biggs  V.  Hoddinott  [1898]  2  Ch.  307,  Kirchwey's  Cas.  475;  Sant- 
ley  V.  Wilde  [1899]  2  Ch.  474,  Kirchwey's  Cas.  488.  See  Noakes  v. 
(1192) 


Ch.   35]  MORTGAGES.  5<   516 

one  case,  that  any  agreement  made  at  the  time  of  executing 
the  mortgage,  if  not  affecting  the  right  of  redemption,  and 
not  intended  for  the  purpose  of  evading  the  usury  laws,  is 

II.     Rights  and  Liabilities  Incident  to  the  Mortgage  Relation. 

The  mortgagor,  as  being  the  owner  of  the  land,  has  the  same 
right  of  control  thereover  as  before  the  making  of  the  mortgage, 
except  as  against  the  owner  of  the  mortgage.  The  interest  of 
the  owner  of  the  mortgage,  even  in  states  where  he  has  the 
legal  title,  is  regarded,  for  most  purposes,  as  a  mere  chose  in 
action,  and  is  personal  property. 

The  relation  of  mortgagee  and  mortgagor  is  not  that  of  trus- 
tee and  cestui  que  trust,  but  the  former  cannot,  by  virtue  of 
his  position,  make  a  profit  at  the  expense  of  the  latter,  and  in 
some  states  he  cannot  purchase  the  land  if  sold  for  taxes. 

In  states  where  the  mortgagee  has  the  legal  title,  he  is  usual- 
ly entitled  to  possession  of  the  land,  in  the  absence  of  a  statute 
or  an  agreement  to  the  contrary.  In  other  states  the  mort- 
gagor is  entitled  to  the  possession.  The  mortgagee  must  ac- 
count to  the  mortgagor  for  all  rents  and  profits  received  by 
him  while  in  possession,  or  which  he  might  have  received  by 
the  exercise  of  diligence,  while  the  mortgagor,  if  in  possession, 
owes  no  such  duty  to  the  mortgagee. 

Upon  the  making  of  a  mortgage  of  land  subject  to  a  previous 
lease,  the  mortgagee,  if  having  the  legal  title,  is  entitled  to  the 
rent  as  the  assignee  of  the  reversion,  but  he  cannot  disturb  the 
lessee's  occupancy.  If  a  lease  is  made  by  the  mortgagor  after 
the  mortgage,  the  mortgagee  may  enforce  his  right  to  posses- 
sion against  the  lessee,  but  the  latter,  to  avoid  ejection,  may 
attorn  and  pay  the  rent  to  the  mortgagee. 

The  mortgagee  is  entitled  to  make  such  expenditures  on  ac- 

Rice,  [1902]  App.  Cas.  24,  and  13  Harv.  Law  Rev.  595,  15  Harv.  Law 
Rev.  661. 

114  Gleason's  Adm'x  v.  Burke,  20  N.  J.  Eq.  .300,  Kirchwey's  Cas.  496. 
See,  also,  Uhlfelder  v.  Carter,  64  Ala.  527. 

(1103) 


§   516  REAL  PROPERTY.  [Ch.   35 

count  of  the  mortgagor  as  are  necessary  to  preserve  his  lien 
unimpaired,  and  to  make  necessary  repairs  on  the  premises, 
hut  is  not  usually  entitled  to  credit  for  improvements  made  hy 
him  while  in  possession. 

The  mortgagor  and  mortgagee  have  each  an  insurable  inter- 
est, the  former  to  the  value  of  the  land,  and  the  latter  to  the 
extent  of  his*^  debt. 

The  mortgagee  has  a  right  to  an  injunction  to  restrain  im- 
pairment of  his  security  by  injuries  to  the  land,  and  has  also, 
in  most  states,  a  right  of  action  for  damages  on  account  of  such 
injuries.  In  states  where  he  has  the  legal  title  he  has  certain 
rights  of  action  based  thereon  for  acts  of  spoliation  by  the 
mortgagor  or  by  third  persons. 

§  516.     The  nature  of  the  mortgagor's  interest. 

Whichever  theory  as  to  the  character  of  the  mortgagee's  in- 
terest be  adopted,  the  mortgagor  is  always  regarded  as  the  sub- 
stantial owner  of  the  land.^^^  He  may  convey  or  devise^^^  or 
lease  it.^^'^  Upon  his  death,  his  estate  in  the  land  passes  to 
his  heirs  or  otherwise,  in  the  same  way  as  if  there  were  no 
mortgage,^ ^*  and  the  widow  of  the  mortgagor  is  entitled  to 

115  Casborne  v.  Scarfe,  1  Atk.  603;  McMillan  v.  Richards,  9  Cal. 
365,  70  Am.  Dec.  655;  Willington  v.  Gale,  7  Mass.  138;  Trustees  of 
Donations  v.  Streeter,  64  N.  H.  106;  Jackson  v.  Willard,  4  Johns.  (N. 
Y.)  42;  Cotton  v.  Carlisle,  85  Ala.  175,  7  Am.  St.  Rep.  29;  Den  d.  Di- 
mon  V.  Dimon,  10  N.  J.  Law,  156;  Chamberlain  v.  Thompson,  10  Conn. 
243,  26  Am.  Dec.  390;  Barrett  v.  Hinckley,  124  111.  32,  7  Am.  St.  Rep. 
831;  Wilkins  v.  French,  20  Me.  Ill;  White  v.  Rittenmyer,  30  Iowa, 
268;  Annapolis  &  E.  R.  Co.  v.  Gantt,  39  Md.  115;  Howard  v.  Robinson, 
5  Cush.  (Mass.)  119;  Whittemore  v.  Gibbs,  24  N.  H.  484;  Hitchcock 
V.  Harrington,  6  Johns.  (N.  Y.)  290,  5  Am.  Dec.  229. 

116  3  Pomeroy,  Eq.  Jur.  §  1204;  Casborne  v.  Scarfe,  1  Atk.  603; 
White  V.  Whitney,  3  Mete.  (Mass.)  81 ;  Clark  v.  Reyburn,  8  Wall.  (U. 
S.)  318;  Moore  v.  Anders,  14  Ark.  630,  60  Am.  Dec.  551.  See  post, 
§  525. 

117  Bacon  v.  Bowdoin,  22  Pick.  (Mass.)  401;  Hutchinson  v.  Dearing, 
20  Ala.  798;  Kennett  v.  Plummer,  28  Mo.  142.     See  post,  §  521. 

118  Burgess  v.  Wheate,  1  W.  Bl.  123;  White  v.  Rittenmyer,  30  Iowa, 
268;  Packer  v.  Rochester  &  S.  R.  Co..  17  N.  Y.  283. 

(1194) 


Ch.   35]  MORTGAGES.  §   516 

dower,  and  the  husband  to  curtesy.^  ^^  Likewise,  the  mort- 
gagor may  make  a  second  mortgage  of  the  property,  or,  in 
fact,  any  number  of  mortgages  in  succession,  each  mortgagee 
taking  subject  to  prior  mortgages  of  which  he  has  notice.^ ^*^ 

Liability  to  execution. 

The  mortgagor's  interest  is  liable  to  sale  under  execution 
for  his  debts  ;^^^  but  it  is  not,  in  a  number  of  jurisdictions, 
liable  to  execution  under  a  judgment  for  the  mortgage  debt, 
on  the  ground  that  this  would  in  effect  involve  a  foreclosure 
of  the  mortgage  in  an  unauthorized  way.^^-  In  other  juris- 
dictions it  is  held  that  this  may  be  done,  the  sale  under  exe- 
cution being  of  the  land  free  from  the  burden  of  the  mort- 
gage.^ ^^ 

119  See  ante,  §§  184,  208. 

120  Coote,  Mortgages,  371.     See  post,  §§  541,  545. 

121  Trimm  v.  Marsh,  54  N.  Y.  599,  13  Am.  Rep.  623,  Kirchwey's  Cas. 
299;  Gushing  v.  Hurd,  4  Pick.  (Mass.)  253,  16  Am.  Dec.  335;  Wiggin 
V.  Hey  wood,  118  Mass.  514;  Livermore  v.  Boutelle,  11  Gray  (Mass.) 
217,  71  Am.  Dec.  708;  Clinton  Nat.  Bank  v.  Manwarring,  39  Iowa, 
281;  Turner  v.  Watkins,  31  Ark.  429;  Finley  v.  Thayer,  42  111.  350; 
Lord  V.  Crowell,  75  Me.  399;  Gassenheimer  v.  Molton,  80  Ala.  521; 
Powell  V.  Williams,  14  Ala.  476,  48  Am.  Dec.  105;  Punderson  v. 
Brown,  1  Day  (Conn.)  93,  2  Am.  Dec.  53;  Harwell  v.  Fitts,  20  Ga. 
723.  The  common-law  rule  was  otherwise.  4  Kent's  Comm.  160; 
Plunket  V.  Penson,  2  Atk.  290;  Van  Ness  v.  Hyatt,  13  Pet.  (U.  S.) 
294. 

i22Pugh  V.  Fairmount  Gold  &.  Silver  Min.  Co.,  112  U.  S.  238; 
Powell  V.  Williams,  14  Ala.  476,  48  Am.  Dec.  105;  Atkins  v.  Sawyer, 
1  Pick.  (Mass.)  351,  11  Am.  Dec.  188;  Delaplaine  v.  Hitchcock,  6  Hill 
(N.  Y.)  14;  Camp  v.  Coxe,  18  N.  C.  52;  Palmer  v.  Foote,  7  Paige  (N. 
Y.)  437;  Carpenter  v.  Bowen,  42  Miss.  28;  Thornton  v.  Pigg,  24  Mo. 
249;  Goring's  Ex'x  v.  Shreve,  7  Dana  (Ky.)  64;  Boone  v.  Armstrong, 
87  Ind.  168. 

Execution  may,  however,  be  levied  on  the  premises  in  behalf  of 
one  to  whom  the  note  was  assigned  without  the  mortgage.  Crane 
V.  March.  4  Pick.  (Mass.)  131.  16  Am.  Dec.  329. 

123  Hollister  v.  Dillon,  4  Ohio  St.  197;  Cottingham  v.  Springer,  88 
111.  90;   Lydecker  v.  Bogert,  38  N.  J.  Eq.  136;   Whitmore  v.  Tatum, 

(1195) 


§   517  REAL  PROPERTY.  [Ch.  35 

§  517.    Nature  of  the  mortgagee's  interest. 

The  mortgagee  has,  as  before  stated,  in  England  and  in 
some  of  the  states,  the  legal  title  to  the  land.  This  title, 
however,  does  not  make  him  the  owner  of  the  land,  except  in 
so  far  as  the  exercise  of  the  rights  of  an  owner  is  necessary 
or  desirable  for  the  protection  of  his  security.^  ^^  According- 
ly, his  interest,  as  being  a  mere  chose  in  action,  is  regarded 
as  personal  property,  although  the  property  mortgaged  be  free- 
hold, and,  on  his  death  intestate,  it  passes  to  his  personal  rep- 
resentatives, and  not  to  his  heirs. ^-^  So,  the  mortgagee's  in- 
terest before  foreclosure  is,  as  being  a  mere  chose  in  action, 
not  subject  to  levy  under  execution  against  him.^^*^ 

In  jurisdictions  where  the  mortgagee  has  the  legal  title,  he 
may  bring  ejectment  against  any  j)erson  wrongfully  in  pos- 
session of  the  land,^-^  and,  being  entitled  to  the  possession  as 

54  Ark.  457;  Crooker  v.  Frazier,  52  Me.  406.     See  Trimm  v.  Marsh, 
54  N.  Y.  599,  13  Am.  Rep.  623,  Kirchwey's  Cas.  299. 

124  Wilkins  v.  French,  20  Me.  Ill;  Ellison  v.  Daniels,  11  N.  H.  274; 
Shields  v.  Lozear,  34  N.  J.  Law,  496,  3  Am.  Rep.  256,  Kirchwey's  Cas. 
728;  Cotton  v.  Carlisle,  85  Ala.  175,  7  Am.  St.  Rep.  29;  Barrett  v. 
Hinckley,  124  111.  32,  7  Am.  St.  Rep.  331,  Kirchwey's  Cas.  634;  Nor- 
cross  V.  Norcross,  105  Mass.  265. 

125  Collamer  v.  Langdon,  29  Vt.  32;  Webster  v.  Calden,  56  Me.  204 
Ladd  V.  Wiggin,  35  N.  H.  421;  Stevenson  v.  Polk,  71  Iowa,  278,  290 
Baldwin  v.  Hatchett,  56  Ala.  461;  Mills  v.  Shepard,  30  Conn.  98 
Steel  V.  Steel,  4  Allen  (Mass.)  417;  Buckley  v.  Daley,  45  Miss.  338 
Terhune  v.  Bray's  Ex'rs,  16  N.  J.  Law,  54. 

Formerly,  in  England,  the  mortgage  passed  to  the  heir  as  real 
estate,  but  he  held  it  in  trust  for  the  personal  representative.  Wil- 
liams, Real  Prop.  427.  This  rule  was  changed  by  statute  pi-oviding 
that  the  mortgagee's  interest  should  pass  to  the  personal  represent- 
ative.    44  &  45  Vict.  c.  41,  §  30. 

126  Huntington  v.  Smith,  4  Conn.  235,  Kirchwey's  Cas.  295;  Brown 
V.  Bates,  55  Me.  520,  92  Am.  Dec.  613;  Trapnall's  Adm'x  v.  State  Bank, 
18  Ark.  53;  Eaton  v.  Whiting,  3  Pick.  (Mass.)  484,  Kirchwey's  Cas. 
298;  Glass  v.  Ellison,  9  N.  H.  69;  Jackson  v.  Willard,  4  Johns.  (N. 
Y.)  41;  Rickert  v.  Madeira,  1  Rawle  (Pa.)  325;  Butman  v.  James,  34 
Minn.  547. 

127  4  Kent's  Gomm.  164;  Carroll  v.  Ballance.  26  111.  9,  79  Am.  Dec, 

(1196) 


Ch.    35]  MORTGAGES.  §  517 

against  the  mortgao-or,^-^  may  sue  him  in  that  form  of  ac- 
tion.-'^^  Bnt  even  in  sneh  states,  a  third  person  sued  in  eject- 
ment by  the  mortgagor  is  usually  not  allowed  to  set  up  as 
a  defense  the  outstanding  legal  title  in  the  mortgagee.-^ ^°  In 
some  of  such  states,  the  foreclosure  of  the  equity  of  redemp- 
tion is  usually  by  means  of  a  common-law  action  based  on  the 
existence  of  a  legal  titl(>  in  the  mortgagee.^ ^^ 

In  jurisdictions  where  the  theory  of  a  legal  title  in  the 
mortgagee  is  adopted,  the  mortgagee  of  a  leasehold  estate  has 
been  held  liable,  as  an  assignee,  upon  covenants  contaiucMl  in 
the  lease.-' ^-  Where,  however,  the  purely  equitable  concep- 
tion of  a  mortgage  prevails,  the  rule  is  otherwise,  except,  per- 
haps, when  the  mortgagee  takes  possession.^ ^^ 

354;  Keith  v.  Swan,  11  Mass.  216;  Chamberlain  v.  Thompson,  10  Conn. 
243,  26  Am.  Dec.  390;  Hobart  v.  Sanborn,  13  N.  H.  226,  38  Am.  Dec. 
483;  Drayton  v.  Marshall,  1  Rice  Eq.  (S.  C.)  373,  33  Am.  Dec.  84; 
Buckley  v.  Daley,  45  Miss.  338. 

128  See  post,  §  519. 

129  Keech  v.  Hall,  1  Doug.  21,  Kirchwey's  Cas.  314;  Barrett  v. 
Hinckley,  124  111.  32,  7  Am.  St.  Rep.  331,  Kirchwey's  Cas.  634;  Doe 
d.  Shute  V.  Grimes,  7  Blackf.  (Ind.)  1;  Brastow  v.  Barrett,  82  Me. 
456;  Tryon  v.  Munson,  77  Pa.  St.  250,  Finch's  Cas.  538. 

130  Smith  V.  Vincent,  15  Conn.  1,  38  Am.  Dec.  52;  Burr  v.  Spencer, 
26  Conn.  159,  68  Am.  Dec.  379;  Allen  v.  Kellam,  69  Ala.  447;  Denby 
V.  Mellgrew,  58  Ala.  147;  Woods  v.  Hilderbrand.  46  Mo.  284,  2  Am. 
Rep.  513;  Hall  v.  Lance,  25  111.  277;  Ellison  v.  Daniels,  11  N.  H.  274 
(writ  of  entry) ;  Den  d.  Dimon  v.  Dimon,  10  N.  J.  Law,  156;  Stinson 
V.  Ross,  51  Me.  556,  81  Am.  Dec.  591  (writ  of  entry).  But  in  Mary- 
land the  mortgagor  cannot  sue  in  ejectment.  Beall  v.  Harwood,  2 
Har.  &  J.  (Md.)  167,  3  Am.  Dec.  532;  Berry  v.  Derwart,  55  Md.  66. 

131  See  post,  §  552. 

132  McMurphy  v.  Minot,  4  N.  H.  251,  Kirchwey's  Cas.  289,  2  Gray's 
Cas.  743  (compare  Trustees  of  Donations  v.  Streeter,  64  N.  H. 
106);  Williams  v.  Bosanquet,  1  Brod.  &  B.  238;  Farmers'  Bank  v. 
Mutual  Assur.  Soc,  4  Leigh  (Va.)  69;  Mayhew  v.  Hardesty,  8  Md. 
479. 

133  Astor  V.  Hoyt,  5  Wend.  (N.  Y.)  603,  Kirchwey's  Cas.  292;  John- 
son V.  Sherman,  15  Cal.  287,  76  Am.  Dec.  481;  McKee  v.  Angelrodt,  16 
Mo.  283. 

(1107) 


§   518  REAL  PROPERTY.  [Ch.   35 

§  518.     The  relation  not  fiduciary. 

Though  the  mortgagee  has,  in  those  states  in  which  the  com- 
mon-law theory  of  a  mortgage  is  adopted,  the  legal  title,  while 
the  mortgagor  has  an  equitable  interest  merely,  the  relation 
is  not  one  of  trust,  but  is  adversary,  rather,  in  its  nature.-^ ^^ 
The  position  of  the  mortgagee  is,  however,  similar  to  that  of  a 
trustee,  in  that,  having  procured  the  title,  and  perhaps  the 
right  of  possession,  for  one  purpose, — that  is,  to  secure  his 
debt, — he  cannot  utilize  it  for  another  purpose, — that  is,  to 
make  profits  for  his  own  advantage.  Accordingly,  the  mort- 
gagee is  required  to  account  for  the  rents  and  profits  received 
by  him  while  in  possession.^^^  So,  if  the  mortgagee,  by  rea- 
son of  his  position,  obtains  a  new  lease  upon  the  land,  such 
lease  is  regarded,  not  as  belonging  to  him  absolutely,  but  as  a 
part  of  the  interest  mortgaged,  and  so  subject  to  the  right  of 
redemption.^  ^® 

In  some  jurisdictions,  however,  it  is  held  that  if  the  mort- 
gagee buys  the  land  at  tax  sale,  he  cannot  assert  the  title  so  ac- 
quired as  against  the  mortgagor  or  other  lienors.^ ^'^  In  stat- 
ing this  view,  the  courts  sometimes  tend  to  base  it  on  a  quasi 
trust  relation  existing  between  the  mortgagor  and  mortgagee, 
though  it  might  perhaps  be  as  well  supported,  in  the  majority 
of  cases,  on  the  ground  that  the  mortgagee,  as  well  as  the  mort- 
gagor, is  under  an  obligation  to  pay  the  taxes.^^^     In  some 

134  cholmondeley  v.  Clinton,  2  Jac.  &  W.  1,  177,  Kirchwey's  Cas. 
570;  King  v.  State  Mutual  Fire  Ins.  Co.,  7  Cush.  (Mass.)  7;  Griffin 
V.  Marine  Co.  of  Chicago,  52  111.  130,  142;  Ten  Eyck  v.  Craig,  62  N. 
Y.  406,  Kirchwey's  Cas.  590. 

135  See  post,  §  520. 

i36Holridge  v.  Gillespie,  2  Johns.  Ch.  (N.  Y.)  30,  Kirchwey's  Cas. 
579;  Manlove  v.  Bale,  2  Vern.  84,  Kirchwey's  Cas.  569.  See  Moore 
V.  Titman,  44  111.  367. 

137  Hall  V.  Westcott,  15  R.  I.  373,  Kirchwey's  Cas.  598;  Woodbury 
V.  Swan,  59  N.  H.  22;  Moore  v.  Titman,  44  111.  367;  Fair  v.  Brown, 
40  Iowa,  209;  Connecticut  Mut.  Life  Ins.  Co.  v.  Bulte,  45  Mich.  113. 

138  See  Cooley,  Taxation,  503;  Schenck  v.  Kelley,  88  Ind.  444. 

(1198) 


Ch.  35]  MORTGAGES.  ^   SV) 

jurisdictions,  however,  a  purchase  at  tax  sale  by  the  mortgagee 
is  valid,  as  he  owes  no  duty  to  the  mortgagor  or  other  persons 
interested  in  the  land  to  pay  the  taxes.^^^ 

Apart  from  the  question  as  to  his  right  to  purchase  at  tax 
sale,  it  is  generally  agreed  that  he  may  purchase  any  out- 
standing title,^^*^  provided  ho  does  not  do  so  to  the  injury  of 
the  mortgagor,^ ''^  and  may  accordingly  purchase  at  a  sale  un- 
der a  prior  mortgage,  judgment,  or  other  lien.^^^ 

§  519.     The  right  to  possession  of  the  land. 

Under  the  common-law  view  of  a  mortgage  as  passing  the 
legal  title,  the  mortgagee  is  entitled  to  the  possession  of  the 
premises,  and  this  is  still  generally  the  rule  in  states  where 
the  legal  theory  of  a  mortgage  is  held,  except  in  so  far  as  it 
may  be  changed  by  statute.^  ^^  When,  however,  the  security 
is  sufficient,  the  mortgagee  rarely  asserts  his  right  to  posses- 
sion, although  entitled  thereto,  since  he  is  bound,  if  he  does 
take  possession,  to  account  for  the  rents  and  profits  of  the 
land,^^^  and  there  is  nothing  to  be  gained  by  taking  posses- 

139  Williams  v.  Townsend,  31  N.  Y.  411,  Kirchwey's  Cas.  585;  Wa- 
terson  v.  Devoe,  18  Kan.  223. 

1*0  Walthall's  Ex'rs  v.  Rives,  34  Ala.  92;  Waterson  v.  Devoe,  18 
Kan.  223;  Cameron  v.  Irwin,  5  Hill  (N.  Y.)  280;  Harrison  v.  Roberts, 
6  Fla.  711. 

"1  See  Griffin  v.  Marine  Co.  of  Chicago,  52  111.  130. 

"2  Kirkwood  v.  Thompson,  2  De  Gex,  J.  &  S.  613,  Kirchwey's  Cas. 
574;  Ten  Eyck  v.  Craig,  62  N.  Y.  406,  Kirchwey's  Cas.  590;  Woodlee 
V.  Burch,  43  Mo.  231;  Walthall's  Ex'rs  v.  Rives,  34  Ala.  92;  Harrison 
V.  Roberts,  6  Fla.  711;  Roberts  v.  Fleming,  53  111.  196. 

1*8  4  Kent's  Comm.  155;  Barrett  v.  Hinckley,  124  111.  32,  7  Am.  St. 
Rep.  331,  Kirchwey's  Cas.  634;  Knox  v.  Eaton,  38  Ala.  345;  Lacky 
V.  Holbrook,  11  Mete.  (Mass.)  458;  Kannady  v.  McCarron,  18  Ark. 
166;  Hobart  v.  Sanborn,  13  N.  H.  226,  38  Am.  Dec.  483;  Gray  v.  Gil- 
lespie. 59  N.  H.  469;  Campbell  v.  Poultney,  6  Gill  &  J.  (Md.)  94,  26  Am. 
Dec.  559;  Brastow  v.  Barrett,  82  Me.  456;  Youngman  v.  Railroad  Co., 
65  Pa.  St.  278.  Contra,  Shields  v.  Lozear,  34  N.  J.  Law,  496.  3  Am. 
Hep.  256,  Kirchwey's  Cas.  728;    Allen  v.  Everly,  24  Ohio  St.  97. 

144  See  post,  §  520 

(1100) 


§   519  REAL  PROPERTY.  [Ch.   35 

In  states  where  the  equitable  theory  of  a  mortgage  prevails, 
and  the  mortgagee  has  no  legal  title,  the  mortgagee  is  not  en- 
titled to  the  possession  as  against  the  mortgagor,  since  he  has 
merely  a  lien  on  the  land.  As  a  matter  of  fact,  however,  there 
aj)pears  to  be,  in  all  such  states,  a  statutory  provision  that  the 
mortgagee  shall  remain  in  possession  till  foreclosure.^'*^  But 
even  in  the  latter  class  of  states  it  is  held  that  the  mortgagor 
cannot,  after  default,  recover  possession  of  the  land  from  the 
mortgagee,  his  only  remedy  being  to  redeem,^  ^"  and  by  some 
cases  it  is  apparently  asserted  that  he  has  no  such  right  against 
the  mortgagee  even  before  default.^  "*^ 

Agreement  as  to  possession. 


The  rule  prevailing  in  the  particular  jurisdiction  as  to  the 
possession  of  the  mortgaged  land  may  be  changed  by  agree- 
ment, express  or  implied.  Accordingly,  where  the  mortgagee 
is  otherwise  entitled  to  possession,  it  may  be  agreed  that  the 
mortgagor  shall  have  it,^^^  and  such  an  agreement  is  implied 

145  See  4  Kent's  Comm.  155. 

146  See  1  Stimson's  Am.  St.  Law,  §§  1882,  1883;  1  Jones,  Mortgages, 
§  18-57. 

i47phyfe  V.  Riley,  15  Wend.  (N.  Y.)  248,  30  Am.  Dec.  55;  Pell  v. 
Ulmar,  18  N.  Y.  139;  Fee  v.  Swingly,  6  Mont.  596;  Frink  v.  Le  Roy, 
49  Cal.  314;  Jones  v.  Rigby,  41  Minn.  530;  Cooke  v.  Cooper,  18  Or. 
142,  17  Am.  St.  Rep.  709;  Tallman  v.  Ely,  6  Wis.  244;  Brinkman  v. 
Jones,  44  Wis.  512;  1  Jones,  Mortgages,  §  715. 

The  fact  that  the  mortgagee  in  possession  may  have  received  rents 
and  profits  from  the  land  to  an  amount  greater  than  the  sum  due 
on  the  mortgage  does  not  affect  his  right  to  retain  possession  until 
they  are  applied  by  judgment  of  a  court  in  satisfaction  of  the  mort- 
gage. Hubbell  V.  Moulson,  53  N.  Y.  225,  13  Am.  Rep.  519,  Kirch- 
wey's  Cas.  334. 

148  Spect  V.  Spect,  88  Cal.  437,  22  Am.  St.  Rep.  314;  Duke  v.  Reed, 
64  Tex.  705;  Hubbell  v.  Moulson,  53  N.  Y.  225,  13  Am.  Rep.  519, 
Kirchwey's  Cas.  334  (semble).  Compare  Howell  v.  Leavitt,  95  N.  Y. 
617,  Finch's  Cas.  1043. 

149  Youngman  v.  Railroad  Co.,  65  Pa.  St.  278;  Furbush  v.  Goodwin, 
29  N.  H.  321. 

(1200) 


Ch.   35J  MORTGAGES.  Jj   52(» 

if  the  provisions  of  the  mortgage  evidently  contemplate  the 
mortgagor's  possession,^  ^"  as  when  the  mortgagor  agrees  to 
cultivate  the  land.^^^  So,  on  the  other  hand,  in  states  where 
the  rule  is  that  the  mortgagor  is  entitled  to  possession,  it  may 
by  agreement  be  given  to  the  mortgagee.^ ^^ 

§  520.     Rents  and  profits — Mortgagor  in  possession. 

A  mortgagor  who  is  in  possession,  either  by  consent  of  the 
mortgagee  or  otherwise,  is  entitled  to  receive  and  apply  to  his 
own  use  the  rents  and  profits  of  the  land;^^^  and  this  is  so, 
even  when  the  mortgage  expressly  includes  rents  and  prof- 
its.-'^^  But  if  the  property  is  insufficient  in  value  to  afford 
proper  security  to  the  mortgagee,  and  the  mortgagor  is  in- 
solvent, and  the  mortgagee  is  without  other  means  of  protec- 
tion, a  court  of  equity  will  generally  appoint  a  receiver  to  take 
charge  of  the  rents  and  profits.-*^^ 

isoSoper  V.  Guernsey,  71  Pa.  St.  219;  Clay  v.  Wren,  34  Me.  187; 
Dearborn  v.  Dearborn,  9  N.  H.  117;  Wales  v.  Mellen,  1  Gray  (Mass.) 
512. 

151  Flagg  V.  Flagg,  11  Pick.  (Mass.)  475. 

i52Dutton  V.  Warschauer,  21  Cal.  609,  82  Am.  Dec.  765;  Rogers 
V.  Benton,  39  Minn.  39,  12  Am.  St.  Rep.  613;  Spect  v.  Spect,  88  Cal. 
437,  22  Am.  St.  Rep.  314. 

153  4  Kent's  Comm.  157;  Teal  v.  Walker,  111  U.  S.  242,  Kirchwey's 
Cas.  340;  Harrison  v.  Wyse,  24  Conn.  1,  63  Am.  Dec.  151;  Simpson  v. 
Ferguson,  112  Cal.  180,  53  Am.  St.  Rep.  201;  Hardin  v.  Hardin,  34 
S.  C.  77,  27  Am.  St.  Rep.  786;  Boston  Bank  v.  Reed,  8  Pick.  (Mass.) 
462;  Killebrew  v.  Hines,  104  N.  C.  182,  17  Am.  St.  Rep.  672;  Childs 
V.  Hurd,  32  W.  Va.  66,  87. 

i54Gilman  v.  Illinois  &  Mississippi  Telegraph  Co.,  91  U.  S.  603; 
In  re  Life  Ass'n  of  America,  96  Mo.  632;  Mississippi  Valley  &  W.  Ry. 
Co.  V.  United  States  Express  Co.,  81  111.  534.  But  see  Dunham  v. 
Isett,  15  Iowa.  284. 

155  Price  V.  Dowdy,  34  Ark.  285;  Haas  v.  Chicago  Building  Soc., 
89  111.  498;  Phillips  v.  Eiland,  52  Miss.  721;  Astor  v.  Turner,  11  Paige 
(N.  Y.)  436,  43  Am.  Dec.  766;  Schreiber  v.  Carey,  48  Wis.  208.  See, 
on  this  question,  note  to  Hardin  v.  Hardin,  27  Am.  St.  Rep.  794. 
Sometimes  the  court  will  not  appoint  a  receiver  on  account  of  the 

(1201) 
Real  Prop.— 76. 


§  520  REAL  PROPERTY.  [Ch.   35 

Mortgagee  in  possession. 

The  mortgagee,  if  in  possession,  is  entitled  to  the  rents  and 
profits,  but  he  is  bound  to  account  therefor  on  redemption  by 
the  mortgagor,  or  on  foreclosure,  and  apply  them  on  the 
mortgage  debt.^^^  And  the  mortgagee  in  possession  is  bound 
to  account  not  only  for  rents  and  profits  actually  received  by 
him,  but  also  for  what  he  might  have  received  bv  the  exer- 
cise  of  reasonable  diligence  in  renting  or  otherwise  utilizing 
the  mortgaged  premises.^ ^'^  If  he  does  exercise  such  dili- 
gence, he  is  liable  only  for  what  he  has  received.^ ^^  If  the 
mortgagee  himself  occupies  the  premises,  he  is  liable  for  a 
reasonable  rent  ;^^^  but  he  is  not  liable  for  an  increase  of  rent- 
mere  inadequacy  of  the  security  and  insolvency  of  the  mortgagor, 
but  requires  a  showing  of  waste,  or  bad  faith  of  some  sort.  See 
Hardin  v.  Hardin,  34  S.  C.  77,  27  Am.  St.  Rep.  786;  Cortleyeu  v. 
Hathaway,  11  N.  J.  Eq.  40,  64  Am.  Dec.  478.  See,  also,  Haas  v.  Chi- 
cago Building  Soc,  89  111.  498. 

i36Hubbell  V.  Moulson,  53  N.  Y.  225,  13  Am.  Rep.  519;  Murdock 
V.  Clarke,  59  Cal.  683;  Peugh  v.  Davis,  113  U.  S.  542;  Dawson  v. 
Drake,  30  N.  J.  Eq.  601;  Ten  Eyck  v.  Casad,  15  Iowa,  524;  Caldwell 
V.  Hall,  49  Ark.  509,  4  Am.  St.  Rep.  64;  Reitenbaugh  v.  Ludwick,  31 
Pa.  St.  131;  Brown  v.  South  Boston  Sav.  Bank,  148  Mass.  300;  Irwin 
v.  Davidson,  38  N.  C.  311;  Clark  v.  Finlon,  90  111.  245;  Seaver  v. 
Durant,  39  Vt.  103. 

13' Anonymous,  1  Vern.  45,  Kirchwey's  Cas.  543;  Hughes  v.  Wil- 
liams, 12  Ves.  493,  Kirchwey's  Cas.  543;  Schaeffer  v.  Chambers,  6 
N.  J.  Eq.  548,  47  Am.  Dec.  211,  Kirchwey's  Cas.  548;  Daniel  v.  Coker, 
70  Ala.  260;  Miller  v.  Lincoln,  6  Gray  (Mass.)  556;  Long  v.  Richards, 
170  Mass.  120,  64  Am.  St.  Rep.  281;  Sanders  v.  Wilson,  34  Vt.  318; 
Clark  V.  Finlon,  90  111.  245;  Milliken  v.  Bailey,  61  Me.  316;  Walsh 
V.  Rutgers  Fire  Ins.  Co.,  13  Abb.  Pr.  (N.  Y.)  33. 

15S  Anonymous,  1  Vern.  45,  Kirchwey's  Cas.  543;  Brown  v.  South 
Boston  Sav.  Bank,  148  Mass.  300;  Felch  v.  Felch  (Vt.)  9  Law  Rep. 
217,  Kirchwey's  Cas.  545;  Moshier  v.  Norton,  100  111.  63;  Gerrish 
V.  Black,  104  Mass.  400;  Hogan  v.  Stone,  1  Ala.  496;  Peugh  v.  Davis, 
113  U.  S.  542. 

i:-,9  4  Kent's  Comm.  166;  Van  Buren  v.  Olmstead,  5  Paige  (N.  Y.) 
9;  Strong  v.  Blanchard,  4  Allen  (Mass.)  538;  Sanders  v.  Wilson,  34 
Vt.  318;  Barnett  v.  Nelson,  54  Iowa,  41,  37  Am.  Rep.  183. 

(1202) 


Ch.    35]  MORTGAGES.  §   520 

al  value  or  profits  arising  from  improvements  made  by  him- 
self, with  the  cost  of  which  he  is  not  credited.^ ®° 

In  order  thus  to  charge  one,  as  a  mortgagee  in  possession, 
with  the  profits  which  he  might  have  received  by  the  exercise 
of  reasonable  diligence,  it  is  necessary  that  he  be  in  possession 
as  mortgagee,  and  with  knowledge  that  he  occupies  such  a  re- 
lation, and  he  is  not  so  liable  if  he  is  in  possession  otherwise, 
or  he  believes  himself  to  be  a  purchaser,  and  it  afterwards 
turns  out  that  he  has  merely  a  mortgage  or  other  lien  on  the 
land.i" 

Annual  rests. 


The  mortgagee  is  usually  required,  in  accounting  for  the 
rents  and  profits  received,  to  make  a  rest  at  the  end  of  each 
year,  if  at  that  time  the  rents  and  profits  received  exceed  the 
interest  due,  and  to  deduct  such  excess  from  the  principal  sum 
in  determining  the  amount  to  bear  interest  during  the  follow- 
ing year,  since  otherwise  the  mortgagee  would  have  the  use 
of  such  excess  without  paying  therefor.^  ^^  Occasionally  the 
court  will  require  the  rests  to  be  made  more  frequently  than 
once  a  year.^^^ 

i«o4  Kent's  Comm.  166;  Moore  v.  Cable,  1  Johns.  Ch.  (N.  Y.)  385, 
Kirchwey's  Cas.  524;  Jones  v.  Fletcher,  42  Ark.  422;  Dozier  v.  Mitch- 
ell, 65  Ala.  511;  Montgomery  v.  Chadwick,  7  Iowa,  114;  McArthur  v. 
Franklin,  16  Ohio  St.  193;  Hidden  v.  Jordan,  28  Cal.  302. 

i«i  Parkinson  v.  Hanbury,  L.  R.  2  H,  L.  1,  Kirchwey's  Cas.  550; 
Morris  v.  Budlong,  78  N.  Y.  555,  Kirchwey's  Cas.  559;  Daniel  v. 
Coker,  70  Ala.  260;  Young  v.  Omohundro,  69  Md.  424;  Gaskell  v. 
Viquesney,  122  Ind.  244;  Hall  v.  Westcott,  17  R.  I.  504.  See  Barnard 
V.  Jennison,  27  Mich.  230. 

162  Van  Vronker  v.  Eastman,  7  Mete.  (Mass.)  157,  Kirchwey's  Cas. 
561;  Moshier  v.  Norton,  100  HI.  63,  73;  Shaeffer  v.  Chambers,  6  N. 
J.  Eq.  548,  47  Am.  Dec.  211,  Kirchwey's  Cas.  548;  Gladding  v.  Warner, 
36  Vt.  54;  Snavely  v.  Pickle,  29  Grat.  (Va.)  27;  Green  v.  Wescott,  13 
Wis.  606;  Gordon  v.  Lewis,  2  Sumn.  143,  Fed.  Cas.  No.  5,613. 

163  Adams  v.  Sayre,  76  Ala.  509;  Gibson  v.  Crehore,  5  Pick.  (Mass.) 
146. 

(1203) 


§   52]  REAL  PROPERTY.  [Ch.  35 

§  521.     Effect  of  a  lease  of  the  land — Lease  before  mortgage. 

In  the  case  of  a  lease  made  bj  the  mortgagor  before  making 
the  mortgage,  the  mortgagee,  if  entitled  to  the  possession  as 
having  the  legal  title,  may  at  any  time  demand  that  the  lessee 
pay  the  rent  to  him  instead  of  to  the  mortgagor,  and  the  lessee, 
after  such  notice,  is  liable  to  the  mortgagee  for  rent,  accruing 
since  the  date  of  the  mortgage,  which  is  due  and  as  yet  un- 
paid, and  likewise  for  all  rent  thereafter  becoming  due,^^^  un- 
less, perhaps,  this  has  been  paid  in  advance.-^  ®^  The  rights 
of  the  tenant  under  such  lease  to  possession  of  the  premises 
cannot,  however,  be  affected  by  the  making  of  a  subsequent 
mortgage.^  ^^ 

Lease  after  mortgage. 

After  making  the  mortgage,  the  mortgagor  cannot,  even 
though  in  possession,  make  a  lease  of  the  land  which  will  af- 
fect any  right  which  the  mortgagee  may  have,  by  virtue  of 
his  legal  title,  to  obtain  possession,  and  the  latter  may,  if 
entitled  to  possession,  eject  the  lessee.^ ^^  In  the  case  of  a 
lease  thus  made  by  the  mortgagor,  the  mortgage  previously 

164  Moss  V.  Gallimore,  1  Doug.  279,  Kirchwey's  Gas.  316;  King  v. 
Housatonic  R.  Co.,  45  Conn.  226,  Kirchwey's  Cas.  338;  White  v.  Whit- 
ney, 3  Mete.  (Mass.)  87;  Mirick  v.  Hoppin,  118  Mass.  582;  Kimball 
V.  Lockwood,  6  R.  I.  138,  Kirchwey's  Cas.  332;  Comer  v.  Sheehan,  74 
Ala.  452. 

165  By  some  decisions,  he  is  liable  to  the  mortgagee  for  rent  due 
after  the  notice,  even  though  he  paid  it  in  advance  before  receiving 
notice.  De  Nicholls  v.  Saunders,  L.  R.  5  C.  P.  589;  Cook  v.  Guerra, 
L.  R.  7  C.  P.  132.  Contra,  Stone  v.  Patterson,  19  Pick.  (Mass.)  476. 
Kirchwey's  Cas.  331. 

166  Moss  v.  Gallimore,  1  Doug.  279,  Kirchwey's  Cas.  316. 

167  Keech  v.  Hall,  1  Doug.  21,  Kirchwey's  Cas.  314;  Doe  d.  Roby 
v.  Maisey,  8  Barn.  &  C.  767;  McDermott  v.  Burke,  16  Cal.  580;  Com- 
er v.  Sheehan,  74  Ala.  452;  Russum  v.  Wanser,  53  Md.  92;  Stedman 
v.  Gassett,  18  Vt.  346;  Gartside  v.  Outley,  58  111.  210;  Henshaw  v. 
Wells,  9  Humph.  (Tenn.)  568;  Downard  v.  Goff,  40  Iowa,  597;  Lane 
v.  King,  8  Wend.  (N.  Y.)  584,  Finch's  Cas.  197. 

(1204) 


Ch.  35]  MORTGAGES.  §  522 

made  is  not  regarded  as  vesting  in  the  mortgagee  a  title  to 
the  reversion  to  which  the  rent  is  incident,  and  consequently, 
since  there  is  no  privity  of  estate  or  contract  between  him 
and  the  lessee,  he  cannot,  by  action  or  by  distress,  proceed 
for  the  recovery  of  rent.^*^®  The  tenant  under  such  lease 
may,  however,  in  order  to  avoid  eviction  by  the  mortgagee, 
"attorn"  to  the  mortgagee  by  recognizing  him  as  his  landlord, 
thus  creating  a  new  tenancy,  and  such  attornment  is  a  good 
defense  to  the  claim  of  the  mortgagor  for  rent.^^^  Such  a 
new  tenancy  under  the  mortgagee  has  been  held  to  be  suffi- 
ciently shown  by  the  fact  that  the  mortgagee  has  notified  the 
mortgagor's  lessee  to  pay  the  rent  to  him,  and  the  latter  has 
not  repudiated  the  demand  ;^^^  and  likewise  by  the  fact  that 
the  tenant  continues  to  occupy  the  premises  after  the  mort- 
gagee has  entered  thereon  under  his  mortgage.-^ ''^■^ 

§  522.     Expenditures  by  mortgagee. 

The  mortgagee  is  entitled  to  pay  off  an  incumbrance  on 
the  land  prior  to  his  mortgage,  in  order  to  protect  the  lat- 
ter, and  may  claim  a  credit  for  the  amount  so  paid;^^^  and 

168  McKircher  v.  Hawley,  16  Johns.  (N.  Y.)  289;  Massachusetts 
Hospital  Life  Ins.  Co.  v.  Wilson,  10  Mete.  (Mass.)  126;  Teal  v.  Walk- 
er, 111  U.  S.  242,  Kirchwey's  Cas.  332;  Kimball  v.  Lockwood,  6  R.  1. 
138,  Kirchwey's  Cas.  332;  Evans  v.  Elliot,  9  Adol.  &  E.  342;  Drakford 
V.  Turk,  75  Ala.  339;  Stedman  v.  Gassett,  18  Vt.  346;  Hogsett  v.  Ellis, 
17  Mich.  351;  Bartlett  v.  Hitchcock,  10  111.  App.  87. 

169  Jones  V.  Clark,  20  Johns.  (N.  Y.)  51,  Kirchwey's  Cas.  322; 
Magill  V.  Hinsdale,  6  Conn.  464a;  Sanderson  v.  Price,  21  N.  J.  Law, 
637;  Gartside  v.  Outley.  58  111.  210;  Kimball  v.  Lockwood,  6  R.  I. 
138,  Kirchwey's  Cas.  332;  Comer  v.  Sheehan,  74  Ala.  452.  Contra, 
Hogsett  V.  Ellis,  17  Mich.  351. 

170  Brown  v.  Storey,  1  Man.  &  G.  117;  Stedman  v.  Gassett,  18  Vt. 
346.     Compare  Bartlett  v.  Hitchcock,  10  111.  App.  87. 

171  Massachusetts  Hospital  Life  Ins.  Co.  v.  Wilson,  10  Mete.  (Mass.) 
126;  Gartside  v.  Outley,  58  111.  210. 

iT2McCormick  v.  Knox,  105  U.  S.  122;  Harper  v.  Ely,  70  111.  581, 
Kirchwey's  Cas.  563;  Weld  v.  Sabin.  20  N.  H.  533,  51  Am.  Dec.  240; 

(1205) 


ij   522  REAL  PROPERTY.  [Ch.  35 

on  this  principle  he  is  entitled  to  be  repaid,  as  part  of  the 
mortgage  debt,  any  expenditures  by  him  for  taxes  on  the 
property.^  ^^  He  is  also  entitled  to  recover  reasonable  ex- 
penses incurred  in  defending  the  mortgagor's  title.^^'*  He 
can  claim  reimbursement  for  insurance  premiums  paid  by 
him  when  the  mortgagor  agreed  to  insure,  and  failed  to  do 
so.^^^ 

The  mortgagee  is  not  usually  allowed  for  personal  services 
in  connection  with  the  management  of  the  premises,  though 
he  may  charge  for  the  services  of  a  bailiff  whom  it  is  neces- 
eary  to  employ.-' ^^ 

Repairs  and  improvements. 

The  mortgagee  in  possession  is  allowed  for  the  cost  of  any 
necessary  repairs  made  by  him.^^^  He  can  claim  to  be  re- 
imbursed for  improvements,  as  distinct  from  repairs,  if  these 
are  necessary  for  the  proper  enjoyment  of  the  premises,  but 

Davis  V.  Winn,  2  Allen  (Mass.)  Ill;  Hubbell  v.  Moulson,  53  N.  Y. 
225,  13  Am.  Rep.  519,  Kirchwey's  Cas.  334;  Comstock  v.  Michael,  17 
Neb.  288. 

1T3  Sidenberg  v.  Ely,  90  N.  Y.  257,  Kirchwey's  Cas.  564;  McCor- 
mick  V.  Knox,  105  U.  S.  122;  Mix  v.  Hotchkiss,  14  Conn.  32;  Williams 
V.  Hilton,  35  Me.  547,  58  Am.  Dec.  729;  Gooch  v.  Botts,  110  Mo.  419. 

174  Godfrey  v.  Watson,  3  Atk.  517,  Kirchwey's  Cas.  563 ;  Miller  v. 
Whittier,  36  Me.  577;  Riddle  v.  Bowman,  27  N.  H.  236;  Clark  v. 
Smith,  1  N.  J.  Eq.  122. 

175  Harper  v.  Ely,  70  111.  581;  Stinchfield  v.  Milliken,  71  Me.  567; 
Fowley  v.  Palmer,  5  Gray  (Mass.)  549. 

176  4  Kent's  Comm.  166;  Godfrey  v.  Watson,  3  Atk.  517;  Benham  v. 
Rowe,  2  Cal.  387,  56  Am.  Dec.  342;  Eaton  v.  Simonds,  14  Pick. 
(Mass.)  98;  Harper  v.  Ely,  70  HI,  581;  Elmer  v.  Loper,  25  N.  J.  Eq. 
475;  Moore  v.  Cable,  1  Johns.  Ch.  (N.  Y.)  385;  Turner  v.  Johnson,  95 
Mo.  431,  6  Am.  St.  Rep.  62.  By  some  cases,  however,  the  mortgagee 
has  been  allowed  a  commission  on  rents  collected  by  him.  Water- 
man V.  Curtis,  26  Conn.  241;  Gerrish  v.  Black,  104  Mass.  400. 

i77McCumber  v.  Gilman,  15  111.  381,  Kirchwey's  Cas.  536;   Cald- 
well V.  Hall,  49  Ark.  508,  4  Am.  St.  Rep.  64;   Sparhawk  v.  Wills,  5 
Gray  (Mass.)  423;  Harper's  Appeal,  64  Pa.  St.  315;  Dewey  v.  Brown- 
ell,  54  Vt.  441.     Contra,  Barthell  v.  Syverson,  54  Iowa,  160. 
(1206) 


Ch.  35J  MORTGAGES.  jj   ^23 

not  usually  if  they  are  merely  calculated  to  rcndi  r  the  prop- 
erty more  desirable.^  ^^  But  a  mortgagee  in  possession  or 
one  standing  in  his  place,  as  a  purchaser  under  a  void  fore- 
closure sale/'^  Avho,  in  the  reasonable  belief  that  he  has  the 
absolute  title  to  the  land,  makes  lasting  improvements  there- 
on, is  usually  allowed  therefor  in  a  proceeding  by  the  mort- 
gagor for  redemption,^ ^'^  on  the  general  equital)lo  ju-iiu-iplr 
before  referred  to.^^^ 

§  523.     Insurance — By  mortgagor. 

The  mortgagor  has  an  insurable  interest  in  the  land,^^-  and 
may  insure  to  the  full  value  of  the  property,  even  though 

1"-^  Moore  v.  Cable,  1  Johns.  Ch.  (N.  Y.)  385,  Kirchweys  Cas.  524; 
Horn  V.  Indianapolis  Nat.  Bank,  125  Ind.  381,  21  Am.  St.  Rep.  231; 
Bradley  v.  Merrill,  88  Me.  319;  Malone  v.  Roy,  107  Cal.  518;  Dough- 
erty V.  McColgan,  6  Gill  &  J.  (Md.)  275;  McCumber  v.  Gilman,  15 
III.  381,  Kirchwey's  Cas.  536;  Miller  v.  Curry,  124  Ind.  48;  Adkins 
V.  Lewis,  5  Or.  292;  Wells  v.  Van  Dyke,  109  Pa.  St.  330. 

The  mortgagor  is,  of  course,  bound  to  allow  for  the  improvements 
if  he  consented  to  the  making  of  them  by  the  mortgagee.  Bradey 
V.  Merrill,  88  Me.  319;  Cazenove  v.  Cutler,  4  Mete.  (Mass.)  246; 
Shepard  v.  Jones,  21  Ch.  Div.  469,  Kirchwey's  Cas.  514,  per  Jessel, 
M.  R. 

In  England  the  rule  is  more  liberal  to  the  mortgagee,  and  he  is 
allowed  for  lasting  improvements  of  a  reasonable  character,  increas- 
ing the  value  of  the  property.  Sandon  v.  Hooper,  6  Beav.  246,  Kirch- 
wey's Cas.  511;  Shepard  v.  Jones,  21  Ch.  Div.  469,  Kirchwey's  Cas. 
514;  Henderson  v.  Astwood  [1894]  App.  Cas.  150. 

I'O  See  post,  §  554. 

180  Mickles  v.  Dillaye,  17  N.  Y.  80,  Kirchwey's  Cas.  526;  Morgan  v. 
Walbridge.  56  Vt.  405,  Kirchwey's  Cas.  539;  Hicklin  v.  Marco,  46  Fed. 
424;  Ensign  v.  Batterson,  68  Conn.  298;  Bradley  v.  Merrill,  88  Me. 
319;  Gillis  v.  Martin,  17  N.  C.  470,  25  Am.  Dec.  729;  McSorley  v. 
Larissa,  100  Mass.  270;  Millard  v.  Truax,  73  Mich.  381;  Harper's  Ap- 
peal, 64  Pa.  St.  315;  Bacon  v.  Cottrell,  13  Minn.  194  (Gil.  183);  Had- 
ley  v.  Stewart,  65  Wis.  481.     But  see  Miller  v.  Curry,  124  Ind.  48. 

181  See  ante,  §  241. 

182  Royal  Ins.  Co.  v.  Stinson,  103  U.  S.  29;  Strong  v.  Manufactur- 
ers' Ins.  Co.,  10  Pick.  (Mass.)  40,  20  Am.  Dec.  507;  Jackson  v.  Massa- 
chusetts Mut.  Fire  Ins.   Co.,  23  Pick.   (Mass.)  418,  34  Am.  Dec.  69; 

(1207) 


§   523  REAL  PROPERTY.  [Ch.  35 

the  mortgage  be  for  such  value.^^^  His  insurable  interest 
continues  even  after  foreclosure,  and  until  his  right  to  re- 
deem is  barred  ;^^^  and  his  mere  personal  liability  for  the 
debt  gives  him  an  insurable  interest,  even  when  he  has  con- 
veyed the  mortgaged  land  to  another.^ ^^ 

If,  as  is  usually  the  case,  the  mortgagor,  in  compliance 
with  stipulations  in  the  mortgage,  takes  out  insurance  for 
the  mortgagee's  benefit,  or  assigns  his  policy  to  the  mort- 
gagee, the  latter  is  entitled  to  the  proceeds  of  the  insurance 
to  the  extent  of  the  mortgage  debt,  and  has  an  equitable  lien 
thereon. ^^^  But  if  the  insurance  is  taken  out  by  the  mort- 
gagor purely  for  his  own  account,  in  the  absence  of  any  agree- 
ment in  that  regard  with  the  mortgagee,  the  latter  has  no 
claim  on  the  proceeds.^ *^ 

Lycoming  Fire  Ins.  Co.  v.  Jackson,  83  111.  302,  25  Am.  Rep.  386; 
Guest  V.  New  Hampshire  Fire  Ins.  Co.,  66  Mich.  98. 

The  giving  of  a  mortgage  does  not  involve  breach  of  a  condition 
an  the  insurance  policy  against  alienation.  Quarrier  v.  Peabody  Ins. 
■Co.,  10  W.  Va.  507,  27  Am.  Rep.  582;  Commercial  Ins.  Co.  v.  Spank- 
Jieble,  52  111.  53,  4  Am.  St.  Rep.  582;  Hartford  Steam  Boiler  Inspec- 
tion &  Ins.  Co.  V.  Lasher  Stocking  Co.,  66  Vt.  439,  44  Am.  St.  Rep. 
S59. 

183  Royal  Ins.  Co.  v.  Stinson,  103  U.  S.  25;  McDonald  v.  black's 
Adm'r,  20  Ohio,  185,  55  Am.  Dec.  448. 

184  Strong  v.  Manufacturers'  Ins.  Co.,  10  Pick.  (Mass.)  40,  20  Am. 
Dec.  507;  Stephens  v.  Illinois  Mut.  Fire  Ins.  Co.,  43  111.  327;  Buffalo 
Steam  Engine  Works  v.  Sun  Mut.  Ins.  Co.,  17  N.  Y.  401;  Richland 
County  Mut.  Ins.  Co.  v.  Sampson,  38  Ohio  St.  672. 

185  Waring  v.  Loder,  53  N.  Y.  581. 

186  Wheeler  v.  Factors'  &  Traders'  Ins.  Co.,  101  U.  S.  439;  Thomas" 
Adm'rs  v.  Vonkapff's  Ex'rs,  6  Gill  &  J.  (Md.)  372;  In  re  Sands  Ale 
Brewing  Co.,  3  Biss.  175,  Fed.  Cas.  No.  12,307;  Ames  v.  Richardson, 
29  Minn.  330;  Norwich  Fire  Ins.  Co.  v.  Boomer,  52  111.  442,  4  Am. 
Rep.  618;  Miller  v.  Aldrich,  31  Mich.  408;  Nichols  v.  Baxter,  5  R.  I. 
491;  Williamson  v.  Michigan  F.  &  M.  Ins.  Co.,  86  Wis.  393,  39  Am.  St. 
Rep.  906;  Cromwell  v.  Brooklyn  Fire  Ins.  Co.,  44  N.  Y.  42,  4  Am.  Rep. 
641. 

187  Columbia  Ins.  Co.  of  Alexandria  v.  Lawrence,  10  Pet.  (U.  S.) 
507;   Carpenter  v.  Providence  Washington  Ins  Co.,  16  Pet.   (U.  S.) 

(1208) 


Ch.    35]  MORTGAGES.  §  533 

By  the  mortgagee. 

The  mortgagee  also  has  an  insurable  interest/^*  but  only 
to  the  amount  of  the  mortgage  debt;^^^  and  this  interest  con- 
tinues till  the  mortgage  debt  is  paid,  or  the  land  passes  into 
other  hands  by  foreclosure.^'''^  The  mortgagee's  right  to  the 
proceeds  of  the  insurance  taken  out  by  him  is  not  affected  by 
the  fact  that  the  property  is  still,  even  after  the  loss  insured 
against,  sufficient  security  for  the  amount  of  the  mortgage.-^®^ 
The  interests  of  the  mortgagor  and  mortgagee  are  so  distinct 
that  both  may  be  insured  at  the  same  time.-^^^ 

495;  Hancox  v.  Fishing  Ins.  Co.,  3  Sumn.  132,  Fed.  Cas.  No.  6,013; 
Plimpton  V.  Farmers'  Mut.  Fire  Ins.  Co.,  43  Vt.  497;  Vandegraaff  v. 
Medlock,  3  Port.  (Ala.)  389,  29  Am.  Dec.  256;  Ryan  v.  Adamson,  57 
Iowa,  30;  Ames  v.  Richardson,  29  Minn.  330;  Nichols  v.  Baxter,  5 
R.  I.  491;  McDonald  v.  Black's  Adm'r,  20  Ohio,  185,  55  Am.  Dec.  448; 
Nordyke  &  Marmon  Co.  v.  Gery,  112  Ind.  535,  2  Am.  St.  Rep.  219. 

188  Bell  V.  Western  Marine  &  Fire  Ins.  Co.,  5  Rob.  (La.)  423,  39 
Am.  Dec.  542;  King  v.  State  Mut.  Fire  Ins.  Co.,  7  Cush.  (Mass.)  1, 
54  Am.  Dec.  683;  Grevemeyer  v.  Southern  Mut.  Fire  Ins.  Co.,  62  Pa. 
St.  340,  1  Am.  Rep.  420;  Clark  v.  Washington  Ins.  Co.,  100  Mass.  509, 
1  Am.  Rep.  135;  Foster  v.  Van  Reed,  70  N.  Y.  19,  26  Am.  Rep.  544; 
National  Bank  of  D.  O.  Mills  &  Co.  v.  Union  Ins.  Co.  of  San  Fran- 
cisco, 88  Cal.  497,  22  Am.  St.  Rep.  324. 

1S9  Carpenter  v.  Providence  Washington  Ins.  Co.,  16  Pet.  (U.  S.) 
499;  McDonald  v.  Black's  Adm'r,  20  Ohio,  185,  55  Am.  Dec.  448;  Ex- 
celsior Fire  Ins.  Co.  v.  Royal  Ins.  Co.,  55  N.  Y.  343,  14  Am.  Rep.  271; 
Smith  V.  Columbia  Ins.  Co.,  17  Pa.  St.  253,  55  Am.  Dec.  546;  Hadley 
V.  New  Hampshire  Ins.  Co.,  55  N.  H.  110. 

190  National  Bank  of  D.  O.  Mills  &  Co.  v.  Union  Ins.  Co.  of  San  Fran- 
cisco, 88  Cal.  497,  22  Am.  St.  Rep.  324;  Excelsior  Fire  Ins.  Co.  v. 
Royal  Ins.  Co.,  55  N.  Y.  343,  14  Am.  Rep.  271;  King  v.  State  Mut. 
Fire  Ins.  Co.,  7  Cush.  (Mass.)  1,  54  Am.  Dec.  683. 

His  insurable  interest  continues  even  after  his  assignment  of  the 
note,  if  he  is  liable  as  an  indorser  on  the  mortgage  note.  Williams 
V.  Roger  Williams  Ins.  Co.,  107  Mass.  377,  9  Am.  Rep.  41. 

If  1  Foster  v.  Equitable  Mut.  Fire  Ins.  Co.,  2  Gray  (Mass>)'  216; 
Excelsior  Fire  Ins.  Co.  v.  Royal  Ins.  Co.,  55  N.  Y.  343,  14  Am.  Rep. 
271;  Smith  v.  Columbia  Ins.  Co.,  17  Pa.  St.  253,  55  Am.  Dec.  546; 
Aetna  Ins.  Co.  of  Hartford  v.  Baker,  71  Ind.  102. 

192  Carpenter  v.  Providence  Washington  Ins.  Co.,  16  Pet.   (U.  S.) 

(1209) 


§   523  I^EAL  PROPERTY.  [Ch-    35 

If  there  is  no  provision  in  the  mortgage  requiring  the 
mortgagor  to  insure  the  premises,  or  other  agreement  on  the 
subject,  insurance  effected  by  the  mortgagee  is  purely  for  his 
own  account,  and  in  case  of  loss  he  is  entitled  to  the  pro- 
ceeds of  insurance  free  from  any  claim  by  the  mortgagor  to 
have  it  applied  on  the  mortgage  debt.^^^  If,  however,  the 
mortgagee  insures  the  property  on  account  of  the  mort- 
gagor, or  by  his  request,  or  at  his  expense,  because  the  latter 
fails  to  comply  with  his  covenant  to  insure,  the  proceeds  of 
the  policy  must  be  applied  on  the  mortgage  debt.^^'* 

In  most  states  it  is  held  that,  upon  receipt  of  the  proceeds 
of  insurance  by  the  mortgagee,  the  insurance  company  be- 
comes subrogated  to  the  rights  of  the  mortgagee  to  the  extent 
of  the  amount  thus  paid,  the  mortgagee  not  being  allowed 
the  proceeds  of  both  the  mortgage  and  insurance. ^'^^ 

495;  Westchester  Fire  Ins.  Co.  v.  Foster,  90  111.  121;  Jackson  v. 
Massachusetts  Mut.  Fire  Ins.  Co.,  23  Pick.  (Mass.)  418,  34  Am.  Dec. 
69;  Manson  v.  Phcenix  Ins.  Co.,  64  Wis.  26,  54  Am.  Rep.  573. 

i!»:^  Russell  V.  Southard,  12  How.  (U.  S.)  139;  Excelsior  Fire  In.s. 
Co.  V.  Royal  Ins.  Co.,  55  N.  Y.  343,  14  Am.  Rep.  271;  Stinchfield  v. 
Milliken,  71  Me.  567;  Mclntire  v.  Plaisted,  68  Me.  363;  Honore  v. 
Lamar  Fire  Ins.  Co.,  51  111.  409;  White  v.  Brown,  2  Cush.  (Mass.) 
412. 

I'Ji  Waring  v.  Loder,  53  N.  Y.  581;  Honore  v.  Lamar  Fire  Ins.  Co., 
51  111.  409;  Concord  Union  Mut.  Fire  Ins.  Co.  v.  Woodbury,  45  Me. 
447;  Norwich  Fire  Ins.  Co.  v.  Boomer,  52  111.  442,  4  Am.  Rep.  618; 
Nichols  V.  Baxter,  5  R.  I.  491. 

195  Carpenter  v.  Providence  Washington  Ins.  Co.,  16  Pet.  (U.  S.) 
495;  Excelsior  Fire  Ins.  Co.  v.  Royal  Ins.  Co.,  55  N.  Y.  343,  14  Am. 
Rep.  271;  Smith  v.  Columbia  Ins.  Co.,  17  Pa.  St.  253;  Sussex  County 
Mut.  Ins.  Co.  V.  Woodruff,  26  N.  J.  Law,  541;  Honore  v.  Lamar  Fire 
Ins.  Co.,  51  111.  409;  Norwich  Fire  Ins.  Co.  v.  Boomer,  52  111.  442,  4 
Am.  Rep.  618;  Concord  Union  Mut.  Fire  Ins.  Co.  v.  Woodbury,  45 
Me.  447.  In  Massachusetts  the  contrary  view  is  taken, — that  the 
mortgagee  may  recover  both  the  proceeds  of  insurance  and  the  full 
amount  of  the  mortgage.  King  v.  State  Mut.  Fire  Ins.  Co.,  7  Cush. 
(Mass.)  1;  Suffolk  Fire  Ins.  Co.  v.  Boyden,  9  Allen  (Mass.)  123. 
(1210) 


Ch.    35]  MORTGAGES.  jj    524 

§  524.     Injuries  to  the  land — Remedies  of  the  mortgagee. 

The  owner  of  land  subject  to  a  mortgage  may  do  such  acts 
thereon,  even  though  these  involve  the  cutting  of  timber  or 
severance  of  other  parts  of  the  realty,  as  are  incident  to  the 
use,  occupation,  or  improvement  of  the  land  in  the  ordinary 
manner,  and  for  the  purposes  for  which  sucli  land  is  ordi- 
narily used;^^^  but  he  cannot  so  use  the  land  as  to  substan- 
tially impair  the  value  of  the  premises  as  security  by  cutting 
timber,  removing  buildings,  and  the  like,  this  being  regarded 
as  waste  on  his  part.^'^'  Such  commission  of  waste  by  him, 
if  calculated  to  render  the  security  of  questionable  sufficiency, 
but  not  otherwise,  will  be  restrained  by  injunction  at  the 
suit  of  the  holder  of  the  mortgage.-^^^ 

In  a  few  states  it  seems  that  the  mortgagee's  only  remedy 
for  such  acts  by  the  mortgagor  is  by  injunction,  and  that 
he  cannot  recover  at  law  for  any  waste  or  injury  to  the 
land.^*"*      In  most  of  the  states,  however,  although  the  legal 

196  Judkins  v.  Woodman,  81  Me.  351;  Smith  v.  Moore,  11  N.  H.  55; 
Hapgood  V.  Blood,  11  Gray  (Mass.)  400;  Wright  v.  Lake,  30  Vt.  206; 
Angier  v.  Agnew,  98  Pa.  St.  587,  42  Am.  Rep.  624;  Hoskin  v.  Wood- 
ward, 45  Pa.  St.  42;  Searle  v.  Sawyer,  127  Mass.  491,  34  Am.  Rep. 
425,  Kirchwey's  Cas.  427;  In  re  Phillips,  16  Ch.  Div.  104. 

197  Simmins  v.  Shirley,  6  Ch.  Div.  173;  Maples  v.  Millon,  31  Conn. 
598;  Dorr  v.  Dudderar,  88  111.  107;  Langdon  v.  Paul,  22  Vt.  205;  San- 
ders V.  Reed,  12  N.  H.  558;  Wilmarth  v.  Bancroft,  10  Allen  (Mass.) 
348.  But  that  he  can  cut  timber  or  take  minerals,  see  Hoskin  v. 
Woodward,  45  Pa.  St.  44;  Angier  v.  Agnew.  98  Pa.  St.  587,  42  Am. 
Rep.  624. 

198  King  V.  Smith,  2  Hare,  239,  Kirchwey's  Cas.  410;  Buckout  v. 
Swift,  27  Cal.  434,  87  Am.  Dec.  90;  Coker  v.  Whitlock,  54  Ala.  180; 
Lavenson  v.  Standard  Soap  Co.,  SO  Cal.  245,  13  Am.  St.  Rep.  147; 
Moriarty  v.  Ash  worth,  43  Minn.  1,  19  Am.  St.  Rep.  203;  Webster  v. 
Peet,  97  Mich.  326;  Verner  v.  Betz,  46  N.  J.  Eq.  256,  19  Am.  St.  Rep. 
387;  State  Sav.  Bank  v.  Kercheval,  65  Mo.  682,  27  Am.  Rep.  310;  Fair- 
bank  V.  Cudworth.  33  Wis.  358;  Dorr  v.  Dudderar,  88  111.  107;  Min- 
neapolis Trust  Co.  V.  Verhulst,  74  111.  App.  350. 

199  Cooper  V.  Davis,  15  Conn.  556,  Kirchwey's  Cas.  416;  Vander- 
slice  V.  Knapp,  20  Kan.  647;  Tomlinson  v.  Thompson,  27  Kan.  70.    See 

(1211) 


§   524  REAL  PROPERTY.  [Ch.    35 

title  is  not  in  the  mortgagee,  he  has  a  right  of  action  against 
either  the  owner  of  the  mortgaged  land^"°  or  a  third  per- 
son^^^  for  injury  to  his  security  by  acts  of  spoliation  on  the 
land. 

In  most  of  the  states  where  the  mortgagee  has  the  legal 
title,  accompanied  by  the  right  of  possession,  he  has  usually 
the  remedies  incident  to  such  title  or  right.  He  may,  it  has 
been  held,  recover  in  trespass  quare  clausum  fregit  against 
one  injuring  the  land;^''^  and  when  timber  or  fixtures  are 
removed  from  the  land,  his  title  thereto  is  not  affected  by 
the  wrongful  severance,  and  he  may  recover  their  value  in 
an  action  of  trover  or  trespass  de  bonis  asportatis  from  the 
person,  whether  the  owner  of  the  land  or  another,  who  com- 
mitted the  wrong,^^^  or  he  may  recover  the  articles  them- 

Triplett  v.  Parmlee,  16  Neb.  649.  These  decisions  place  the  mort- 
gagee rather  at  the  mercy  of  an  unscrupulous  mortgagor,  and  there 
would  seem,  on  principle,  no  reason  why  one  injured  as  regards  a 
proprietary  right,  even  though  it  be  a  lieu  right  only,  should  not  have 
an  action  of  tort  against  the  person  committing  the  injury. 

200  Jackson  v.  Turrell,  39  N.  J.  Law,  329;  Carpenter  v.  Cincinnati 
&  Whitewater  Canal  Co.,  35  Ohio  St.  307;  Lavenson  v.  Standard  Soap 
Co.,  80  Cal.  245,  13  Am.  St.  Rep.  147;  Van  Pelt  v.  McGraw,  4  N.  Y. 
110,  Kirchwey's  Cas.  421;  Searle  v.  Sawyer,  127  Mass.  491,  Kirch- 
wey's  Cas.  427;  Langdon  v.  Paul,  22  Vt.  205. 

201  Van  Pelt  v.  McGraw,  4  N.  Y.  110,  Kirchwey's  Cas.  421;  Webber 
v.  Ramsey,  100  Mich.  58,  43  Am.  St.  Rep.  429,  note;  Allison  v.  Mc- 
Cune,  15  Ohio,  726,  45  Am.  Dec.  605;  Gooding  v.  Shea,  103  Mass.  360; 
Lavenson  v.  Standard  Soap  Co.,  80  Cal.  245,  13  Am.  St.  Rep.  147,  note; 
Atkinson  v.  Hewett,  63  Wis.  396.  The  mortgagee  cannot,  however, 
recover,  it  has  been  decided  in  New  York,  for  injury  to  the  land,  as 
by  cutting  timber,  against  one  so  doing  in  ignorance  of  the  existence 
of  the  mortgage,  and  under  contract  with  the  owner  of  the  land. 
Wilson  V.  Maltby,  59  N.  Y.  126,  Kirchwey's  Cas.  424.  Compare  Searle 
V.  Sawyer,  127  Mass.  491,  34  Am.  Rep.  425,  Kirchwey's  Cas.  427. 

202  Stowell  V.  Pike,  2  Me.  387,  Kirchwey's  Cas.  414;  Smith  v.  Good- 
win, 2  Me.  173;  Leavitt  v.  Eastman,  77  Me.  117;  Sanders  v.  Read,  12 
N.  H.  558. 

203  Searle  v.  Sawyer,  127  Mass.  491,  34  Am.  Rep.  425,  Kirchwey's 
Cas.  427;  Cole  v.  Stewart,  11  Cush.  (Mass.)  181;  Burnside  v.  Twitch- 
(1212) 


Ch.  35J  MORTGAGES.  §  524 

selves  in  rej)levin.^*^^  In  some  of  the  states,  however,  in 
which  the  legal  title  is  regarded  as  in  the  mortgagee,  as  well 
as  in  those  in  which  the  equitable  theory  prevails,  the  mort- 
gagee's lien  or  title  is  regarded  as  divested  by  the  severance, 
so  that  he  cannot  assert  any  rights  in  the  things  severed. -"^^ 

Occasionally  it  is  said  that  there  is  no  right  of  action  as 
for  the  injury  to  the  security  unless  such  injury  is  shown 
by  the  existence  of  a  deficiency  on  foreclosure,^ °^ — a  rule  cal- 
culated to  affect  the  mortgagee  adversely  by  compelling  him 
to  defer  his  action  for  damages  until  after  foreclosure.  In 
states  where  the  legal  title  is  in  the  mortgagee,  however,  the 
mortgagee's  right  of  action  is  independent  of  the  sufficiency 
of  the  security,  he  being  entitled  to  the  whole  security 
pledged.^  °^ 

Remedies  of  the  mortgagor. 

The  mortgagee,  if  in  possession,  owes  the  duty  to  the  mort- 
gagor not  to  commit  waste,  and  may  be  restrained  from  so 
doing  by  in j  unction,  ^'^^  and  may  be  required  to  account  for 

ell,  43  N.  H.  390;  Frothingham  v.  McKusick,  24  Me.  403;  Angler  v. 
Agnew,  98  Pa.  St.  587,  42  Am.  Rep.  624. 

204  Dorr  v.  Dudderar,  88  111.  107.  And  see  Mosher  v.  Vehne,  77 
Me.  169;  Searle  v.  Sawyer,  127  Mass.  491,  Kirchwey's  Cas.  427. 

205  Cooper  V.  Davis,  15  Conn.  556,  Kirchwey's  Cas.  416;  Buckout  v. 
Swift,  27  Cal.  433,  87  Am.  Dec.  90;  Harris  v.  Bannon,  78  Ky.  568; 
Clark  V.  Reyburn,  1  Kan.  281;  Kircher  v.  Schalk,  39  N.  J.  Law,  335; 
Peterson  v.  Clark,  15  Johns.  (N.  Y.)  205;  Hamlin  v.  Parsons,  12  Minn. 
108  (Gil.  59),  90  Am.  Dec.  284.  Compare  Verner  v.  Betz,  46  N.  J. 
Eq.  256,  19  Am.  St.  Rep.  387. 

206  Taylor  v.  McConnell,  53  Mich.  587;  Lavenson  v.  Standard  Soap 
Co.,  80  Cal.  245,  13  Am.  St.  Rep.  147.  And  see  Lane  v.  Hitchcock,  14 
Johns.  (N.  Y.)  213;  Gardner  v.  Heartt,  3  Denio  (N.  Y.)  232. 

207  Byrom  v.  Chapin,  113  Mass.  308;  Gooding  v.  Shea,  103  Mass. 
360,  4  Am.  Rep.  563.  See  Leavitt  v.  Eastman,  77  Me.  117.  But 
in  King  v.  Bangs,  120  Mass.  514,  the  fact  that  the  premises  were  sold 
under  the  mortgage  for  sufficient  to  pay  the  debt  was  held  to  be  ad- 
missible in  mitigation  of  damages. 

208  Farrant  v.  Lovel,  3  Atk.  723;  Youle  v.  Richards,  1  N.  J.  Eq.  534, 
23  Am.  Dec.  722;  Givens  v.  McCalmont,  4  Watts  (Pa.)  460. 

(1213) 


§   525  REAL  PROPERTY.  [Qh.   35 

any  loss  resulting  tlierefrom.^"^  He  is  not,  however,  liable 
as  for  permissive  waste  in  failing  to  keep  the  premises  in 
repair,  or  for  improper  cultivation  of  the  land,  unless  he  has 
been  giiilty  of  gross  negligence  in  that  respect.-^" 

III.     The  Transfer  of  Mortgaged  Land. 

The  mortgagor  may  transfer  the  mortgaged  land  to  another 
person,  in  which  case  the  transferee  succeeds  to  the  rights  and 
liabilities  of  the  mortgagor. 

The  transferee,  by  an  express  stipulation  to  that  effect  with 
the  mortgagor,  may  become  personally  liable  for  the  mortgage 
debt,  and,  as  r'^gards  the  latter,  he  is  in  such  case  the  principal 
debtor  to  the  mortgagee,  while  the  mortgagor  is  surety  only. 
While  this  change  of  relation  does  not  effect  the  right  of  the 
mortgagee  to  enforce  the  personal  obligation  of  the  mortgagor, 
he  is,  by  some  decisions,  bound  to  recognize  it.  The  personal 
liability  of  the  transferee  may  usually  be  enforced  by  the  mort- 
gagor, though  in  some  states  this  can  be  done  in  equity  only. 

The  transferee  of  land  who  agrees  to  pay  the  mortgage,  or 
takes  a  transfer  expressly  stating  that  the  land  is  subject  to 
the  mortgage,  cannot  question  the  validity  of  the  mortgage. 

In  case  of  the  transfer  of  different  parts  of  the  land  at  differ- 
ent times  by  conveyances  which  do  not  impose  any  obligation 
oil  the  transferees  of  paying  the  mortgage,  and  which  do,  by 
reason  of  covenants  for  title  or  otherwise,  impose  such  obli- 
gation on  the  transferrer,  the  parts  are  liable  to  the  enforce- 
ment of  the  mortgage  lien  in  the  inverse  order  of  alienation. 

§  525.     General  considerations. 

The  mortgagor  may,  as  before  stated,  convey  or  devise  the 
mortgaged  land,  it  may  be  sold  on  execution,  and  it  passes, 

209  Sandon  v.  Hooper,  6  Beav.  246,  Kirchwey's  Cas.  511;  Perdue  Y. 
Brooks,  85  Ala.  459. 

210  Russel  V.  Smithies,  1  Anstr.  96,  Kirchwey's  Cas.  507;  Wragg  v. 
Denham,  2  Younge  &  C.  117,  Kirchwey's  Cas.  507;  Dexter  v.  Arnold,  2 
Sumn.  108,  Fed.  Cas.  No.  3,858,  Kirchwey's  Cas.  522. 

(1214) 


Ch.  351  MORTGAGES.  §   525 

on  his  death  intestate,  to  his  heirs,  or  to  his  personal  repre- 
sentatives, if  his  estate  is  less  than  freehold.  The  grantee, 
devisee,  heir,  or  personal  representative  takes  the  land  sub- 
ject to  the  mortgage,  but  with  the  rights  of  the  mortgagor. 
He  may  redeem  from  the  mortgage,"^ ^  and  may  require  a 
mortgagee  in  possession  to  accoimt  for  the  rents  and  prof- 
its.-^ ^  He  stands  generally  in  the  same  position  as  regards 
the  mortgage  on  the  land  as  did  his  predecessor  in  interest, 
and  he  has  no  greater  rights,  since  the  rights  of  the  mortgagee 
cannot  be  impaired  by  a  transfer  of  the  land. 

Transfer  to  mortgagee. 


After  the  making  of  the  mortgage,  the  mortgagor  and 
mortgagee  may  deal  with  each  other  as  any  other  individ- 
uals, and  a  conveyance  or  release  by  the  mortgagor  to  the 
mortgagee  of  his  interest  in  the  mortgaged  land  is  valid,  pro- 
vided, in  view  of  the  peculiar  relation  of  the  parties,  the 
absence  of  circumstances  of  fraud  and  oppression  is  clearly 
shown.^^^      Occasionally  it  is  stated  that  such  a  transfer  by 

-11  See  post,  §  541. 

212  Strang  v.  Allen,  44  111.  428;  Gaskell  v.  ViqUesney,  122  Ind.  244, 
17  Am.  St.  Rep.  364;  Long  v.  Richards,  170  Mass.  120;  Ruckman  v. 
Astor,  9  Paige  (N.  Y.)  517. 

^isPeugh  V.  Davis,  96  U.  S.  332;  Seymour  v.  Mackay,  126  111.  341; 
Wynkoop  v.  Cowing,  21  111.  570;  Baugher  v.  Merryman,  32  Md.  185; 
Trull  V.  Skinner,  17  Pick.  (Mass.)  213,  Kirchwey's  Cas.  445;  Odell 
V.  Montross,  68  N.  Y.  499,  Kirchwey's  Cas.  460;  Shaw  v.  Walbridge, 
33  Ohio  St.  1;  Hall  v.  Hall,  41  S.  C.  163,  44  Am.  St.  Rep.  696;  Green 
V.  Butler,  26  Cal.  595,  Kirchwey's  Cas.  448. 

Such  a  conveyance  by  a  mortgagor  to  the  mortgagee,  which  takes 
effect,  strictly  speaking,  by  way  of  release,  is  to  be  distinguished 
from  an  attempted  release  or  waiver  by  the  mortgagor  of  the  right 
to  redeem.  The  statement  quite  frequently  made,  that  the  mortgagor 
may  release  his  equity  of  redemption  by  an  agreement,  subsequent  to 
the  mortgage,  but  not  contemporaneous  therewith,  seems  to  involve  a 
confusion  of  thought,  arising  from  the  double  use  of  the  term 
"equity  of  redemption."  See  ante,  note  7.  The  time  of  the  trans- 
action is  immaterial.     The  mortgagor  cannot  waive  his  right  of  re- 

(1215) 


§   526  REAL  PROPERTY.  [Ch.   35. 

the  mortgagor  to  the  mortgagee  must  be  supported  bv  an: 
adequate  consideration,^^ ^  but  in  other  cases  this  is  denied, 
and  it  would  seem  that  this  requirement,  so  far  as  it  exists, 
merely  means  that  the  fact  that  the  mortgagor  could  obtain  a 
higher  price  from  another  purchaser  is  strong,  if  not  conclu- 
sive, evidence  of  fraud  or  oppression.  ^^^  Such  subsequent 
transfer,  moreover,  though  absolute  in  form,  may,  like  any 
other  absolute  transfer,  be  shown  not  to  be  so  intended,  but 
to  be  merely  for  the  purpose  of  enabling  the  mortgagee  to 
secure  his  debt.^^^ 

§  526.     Personal  liability  of  the  transferee. 

The  mortgagor's  transferee  is  not  personally  liable  for 
the  mortgage  debt  unless  he  expressly  or  impliedly  agrees  to 
pay  it,  though  the  land  is  always  liable  for  the  amount  of 
the  mortgage,  provided  the  transferee  has  actual  or  construc- 
tive notice  of  its  existence. ^^'^     And  so  the  fact  that  the  land 

demption  by  an  agreement  contemporaneous  with  or  subsequent  to 
the  mortgage,  because  a  mortgage  without  the  right  of  redemption 
is  not  recognized  by  the  courts.  He  may,  however,  convey  the  land 
to  the  mortgagee, — not,  of  course,  contemporaneously  with  the  mort- 
gage, because  that  would  be  impossible,  but  subsequently  thereto, — 
and  this  he  can  do  for  the  simple  reason  that  he  is  owner  of  the  land. 

214  Villa  V.  Rodriguez,  12  Wall.  (U.  S.)  323,  Kirchwey's  Cas.  453; 
Odell  V.  Montross,  68  N.  Y.  499,  Kirchwey's  Cas.  460;  Linnell  v.  Ly- 
ford,  72  Me.  280;  Hyndman  v.  Hyndman,  19  Vt.  9,  46  Am.  Dec.  171. 
The  transfer  "must  be  for  a  consideration  which  would  be  deemed  rea- 
sonable if  the  transaction  were  between  other  parties  dealing  in. 
similar  property  in  its  vicinity."     Peugh  v.  Davis,  96  U.  S.  332. 

215  That  the  consideration  need  not  be  adequate,  see  Coote,  Mort- 
gages, 21;  Waters  v.  Groom,  11  Clark  &  F.  684;  De  Martin  v.  Phelan 
115  Cal.  538,  Kirchwey's  Cas.  465;  West  v.  Reed,  55  111.  242.  See  Hicks 
V.  Hicks,  5  Gill  &  J.  (Md.)  75;  Trull  v.  Skinner,  17  Pick.  (Mass.) 
213,  Kirchwey's  Cas.  445. 

216  Vernon  v.  Bethell,  2  Eden,  110;  Villa  v.  Rodriguez,  12  Wall. 
(U.  S.)  323,  Kirchwey's  Cas.  453;  Tower  v.  Fetz,  26  Neb.  706,  18 
Am.  St.  Rep.  795;  Baugher  v.  Merryman,  32  Md.  185.     See,  ante,  §  512. 

217  Strong  V.  Converse,  8  Allen  (Mass.)  557,  85  Am.  Dec.  732;  Com- 
(1216) 


Ch.  35j  MORTGAGES.  §  526 

is  in  terms  conveyed  "subject  to"  the  mortgage  imposes  no 
personal  liability  on  him.^^^ 

An  agreement  by  the  grantee  to  pay  the  mortgage,  or  if 
statement  that  he  assumes  it,  makes  him  personally  liable 
for  the  amount  thereof.^ ^'^  In  order  thus  to  impose  a  per- 
sonal liability  on  him  by  reason  of  a  clause  in  the  convey- 
ance, it  is  not  necessary  that  the  grantee  himself  sign  the 
conveyance,  its  acceptance  by  him  being  regarded  as  suffi- 
cient.^^'' Even  though  there  is  no  clause  in  the  conveyance 
imposing  a  personal  liability  upon  the  transferee,  he  may 
assume  such  liability  by  a  collateral  agreement,  either  v^^rit- 

stock  V.  Hitt,  37  111.  542;  Trotter  v.  Hughes,  12  N.  Y.  74,  62  Am.  Dec. 
137;  Fiske  v.  Tolman,  124  Mass.  254,  26  Am.  Rep.  659;  Fowler  v. 
Fay,  62  111.  375;  Lewis  v.  Day,  53  Iowa,  575;  Tanguay  v.  Felthousen, 
45  Wis.  30;  Elliott  v.  Sackett,  108  U.  S.  132;  Hall  v.  Mobile  &  M.  Ry. 
Co.,  58  Ala.  10;  Green  v.  Hall,  45  Neb.  89;  Guernsey  v.  Kendall,  55 
Vt.  201;  Gerdine  v.  Menage,  41  Minn.  417. 

218  Elliott  V.  Sackett,  108  U.  S.  132;  Fiske  v.  Tolman,  124  Mass.  254, 
26  Am.  Rep.  659;  Lewis  v.  Day,  53  Iowa,  575;  Shepherd  v.  May,  115 
U.  S.  505;  Moore's  Appeal,  88  Pa.  St.  450;  Dunn  v.  Rodgers,  43  111. 
260;  Post  V.  Tradesmen's  Bank,  28  Conn.  420;  Dean  v.  Walker,  107 
111.  540,  47  Am.  Rep.  467;  Green  v.  Turner,  38  Iowa,  112;  Woodbury 
V.  Swan,  58  N.  H.  380;  Bennett  v.  Bates,  94  N.  Y.  354;  Green  v.  Hall, 
45  Neb.  89;  Tanguay  v.  Felthousen,  45  Wis.  30;  Belmont  v.  Coman, 
22  N.  Y.  438,  78  Am.  Dee.  213. 

219  Farmers'  Nat.  Bank  v.  Gates,  33  Or.  388,  72  Am.  St.  Rep.  724; 
Campbell  v.  Smith,  71  N.  Y.  26,  27  Am.  Rep.  5;  Trotter  v.  Hughes,  12 
N.  Y.  74,  62  Am.  Dec.  137;  Furnas  v.  Durgin,  119  Mass.  500,  20  Am. 
Rep.  341;  Keller  v.  Ashford,  133  U.  S.  610;  Taylor  v.  Whitmore,  35 
Mich.  97;  Taylor  v.  Preston,  79  Pa.  St.  436;  Birke  v.  Abbott,  103  Ind. 
1,  53  Am.  Rep.  474;  Rice  v.  Sanders,  152  Mass.  108,  23  Am.  St.  Rep. 
804;  Green  v.  Stone,  54  N.  J.  Eq.  387,  55  Am.  St.  Rep.  577. 

220Finley  v.  Simpson,  22  N.  J.  Law,  311.  53  Am.  Dec.  252; 
Schmucker  v.  Sibert,  18  Kan.  104,  26  Am.  Rep.  765;  Furnas  v.  Durgin, 
119  Mass.  500,  20  Am.  Rep.  341;  Davis  v.  Hulett,  58  Vt.  90;  Dean  v. 
Walker,  107  111.  540,  47  Am.  Rep.  467;  Atlantic  Dock  Co.  v.  Leavitt, 
54  N.  Y.  35,  13  Am.  Rep.  556;  Bowen  v.  Beck,  94  N.  Y.  86,  46  Am. 
Rep.  124;  Keller  v.  Ashford,  133  U.  S.  610;  Crawford  v.  Edwards,  33 

(1217) 
Real  Prop.— 77. 


§   527  REAL  PROPERTY.  [Ch.  35 

ten  or  oral  f~^  and,  according  to  a  number  of  decisions,  such 
an  agreement  is  implied  from  the  fact  that,  when  a  pur- 
chaser has  agreed  to  pay  a  particular  sum  for  the  mort- 
gaged land,  the  amount  of  the  mortgage  is  deducted  from  this 
sum  in  fixing  the  amount  actually  paid  by  him,  and  the  land 
is  conveyed  to  him  subject  to  the  mortgage. ^^^ 

§  527.     Mortgagor  becoming  surety. 

Upon  the  assumj)tion  of  the  mortgage  debt  by  the  trans- 
feree, he  becomes,  according  to  the  current  of  authority,  as 
regards  the  transferrer,  the  principal  debtor,  while  the  mort- 
gagor becomes  a  surety  merely  for  its  payment. ^^^  The 
mortgagee's  right  of  action  to  enforce  the  personal  liability 
of  the  mortgagor  is  not  affected  by  the  fact  that,  as  between 
the  23arties  to  the  transfer,  the  mortgagor  is  surety  only.^^"* 
But  he  is,  according  to  a  number  of  decisions,  bound  to  rec- 

Mich.  354;  O'Conner  v.  O'Conner,  88  Tenn.  76;  Huyler's  Ex'rs  v. 
Atwood,  26  N.  J.  Eq.  504;  Bishop  v.  Douglass,  25  Wis.  696. 

^^1  Schmucker  v.  Sibert,  18  Kan.  104,  26  Am.  Rep.  765;  Strotiauer 
V.  Voltz,  42  Mich.  444;  Merriman  v.  Moore,  90  Pa.  St.  78;  Wright  v. 
Briggs,  99  Ind.  563;  Bowen  v.  Kurtz,  37  Iowa,  239;  Bolles  v.  Beach, 
22  N.  J.  Law,  680,  53  Am.  Dec.  263;  Society  of  Friends  v.  Haines,  47 
Ohio  St.  423. 

222Twitchell  v.  Mears,  8  Biss.  211,  Fed.  Gas.  No.  14,286;  Townsend 
V.  Ward,  27  Conn.  610;  Comstoclc  v.  Hitt,  37  111.  542;  Bristol  Sav. 
Bank  v.  Stiger,  86  Iowa,  344;  Tichenor  v.  Dodd,  4  N.  J.  Eq.  454;  Herd 
V.  Vreeland,  30  N.  J.  Eq.  591;  Rockwell  v.  Blair  Sav.  Bank,  31  Neb. 
128,  as  explained  in  Green  v.  Hall,  45  Neb.  89;  Thompson  v.  Thomp- 
son, 4  Ohio  St.  333.  But  see  Belmont  v.  Coman,  22  N.  Y.  488,  78  Am. 
Dec.  213;  Bennett  v.  Bates,  94  N.  Y.  354;  Fiske  v.  Tolman,  124  Mass. 
254,  26  Am.  Rep.  659;  Granger  v.  Roll,  6  S.  D.  611;  Moore's  Appeal, 
88  Pa.  St.  450. 

--'■'•  Boardman  v.  Larrabee,  51  Conn.  39;  Flagg  v.  Geltmacher,  98  III. 
293;  Calvo  v.  Davies.  73  N.  Y.  211,  29  Am.  Rep.  130;  Ellis  v.  Johnson, 
96  Ind.  377;  Willson  v.  Burton,  52  Vt.  394;  Dean  v.  Walker,  107  111. 
540,  47  Am.  Rep.  467;  George  v.  Andrews,  60  Md.  26.  45  Am.  Rep. 
706;  Metz  v.  Todd,  36  Mich.  473. 

224  Flagg  v.   Geltmacher,   98    111.    293;    Nelson   v.   Brown,   140   Mo. 
580,  62  Am.  St.  Rep.  755;  Merriam  v.  Miles,  54  Neb.  566,  69  Am.  St. 
Kep.  731;  Poe  v.  Dixon,  60  Ohio  St.  124,  71  Am.  St.  Rep.  713. 
(1218) 


Ch.   35]  MORTGAGES.  i<   528 

ognize  this  new  relation  of  principal  and  snrety  in  his  deal- 
ings with  the  principal,' — that  is,  the  transferee, — and  con- 
sequently the  mortgagor  as  surety  is  discharged  from  his 
personal  liability  in  case  the  mortgagee,  after  knowledge  of 
the  transfer  and  the  terms  thereof,  extends  the  time  of  pay- 
ment in  favor  of  the  transferee,  or  makes  other  material  con- 
cessions to  him.^^^  Bj  other  decisions,  the  mortgagee  must 
in  some  way  recognize  this  new  relation  of  principal  and 
surety  in  order  that  he  may  be  affected  thereby. ^^" 

§  528.     Enforcement  of  personal  liability  by  transferee. 

The  transferee  of  the  premises  who  agrees  to  pay  the  mort- 
gage is,  by  the  weight  of  authority,  liable  directly  to  the 
mortgagee,  who  may  recover  by  virtue  of  the  agreement, 
though  not  a  party  thereto.  This  right  of  recovery  by  the 
mortgagee  is  sometimes  based  upon  the  theory  that  a  person 
for  whose  benefit  a  contract  is  made  may  sue  thereon,  and 
that  the  mortgagee  may  accordingly  sue  the  transferee  at 
law.^-^  In  other  cases  the  mortgagee's  right  of  recovery 
against  the  transferee  is  based  on  the  theory  that  since,  by 

225  Union  Mut.  Life  lus.  Co.  v.  Hanford,  143  U.  S.  187;  Calvo  v. 
Davies,  73  N.  Y.'211,  29  Am.  Rep.  130;  Paine  v.  Jones,  76  N.  Y.  274; 
George  v.  Andrews,  60  Md.  26,  45  Am.  Rep.  706;  Nelson  v.  Brown, 
140  Mo.  580,  62  Am.  St.  Rep.  755;  Union  Stove  &  Macli.  Works  v. 
Caswell,  48  Kan.  689,  16  L.  R.  A.  85;  Merriam  v.  Miles,  54  Neb.  566, 
69  Am.  St.  Rep.  731.     See  15  Harv.  Law  Rev.  398. 

--'■'  Shepherd  v.  May,  115  U.  S.  505;  Boardman  v.  Larrabee,  51  Conn. 
39;  Corbett  v.  Waterman,  11  Iowa,  87. 

^2T  Thorp  V.  Keokuk  Coal  Co.,  48  N.  Y.  253;  Burr  v.  Beers,  24  N. 
Y.  178,  80  Am.  Dec.  327;  Gilbert  v.  Sanderson,  56  Iowa,  349.  41  Am. 
Rep.  103;  Schmucker  v.  Sibert,  18  Kan.  104,  26  Am.  Rep.  765;  Dean 
V.  Walker,  107  111.  540,  47  Am.  Rep.  467;  Gifford  v.  Corrigan.  117  N. 
Y.  257;  Urquhart  v.  Brayton,  12  R.  I.  169;  Bay  v.  Williams,  112  111. 
91,  54  Am.  Rep.  209;  Follansbee  v.  Johnson,  28  Minn.  311;  Poe  v. 
Dixon,  60  Ohio  St.  133.  71  Am.  St.  Rep.  713;  Merriman  v.  Moore.  90 
Pa.  St.  78;  Enos  v.  Sanger,  96  Wis.  150,  65  Am.  St.  Rep.  38.  See 
cases  collected,  15  Harv.  Law  Rev.  808. 

(1219) 


§  528  REAL  PROPERTY.  [Qh.  35 

his  agreement  to  pay  the  mortgage,  the  transferee  becomes 
the  principal  debtor,  and  his  grantor  the  surety,  and  since, 
in  equity,  a  creditor  is  entitled  to  be  subrogated  to  any  se- 
curity which  the  surety  has  for  his  indemnity,  the  mort- 
gagee is  subrogated  to  the  right  of  the  mortgagor  against  the 
transferee.^^^ 

When  the  assumption  of  the  mortgage  is  not  by  a  trans- 
feree of  the  land,  but  by  a  second  mortgagee,  his  promise 
to  pay  cannot  be  regarded  as  a  promise  to  pay  his  own  debt, 
nor  as  a  contract  to  indemnify  the  mortgagor  against  lia- 
bility thereon,  as  it  is  in  the  case  of  an  absolute  conveyance, 
but  it  is  in  effect  a  mere  promise  to  advance  the  amount  of 
the  prior  mortgage  to  the  mortgagor,  and  there  is  no  right 
of  recovery  against  such  second  mortgagee  in  favor  of  the 
first  mortgagee.^^^ 

Until  the  mortgagee  has  in  some  manner  accepted  the  as- 

228  Keller  v,  Ashford,  133  U.  S.  610;  Osborne  v.  Cabell,  77  Va.  462; 
Crowell  V.  Hospital  of  St.  Barnabas,  27  N.  J.  Eq.  650;  Biddel  v. 
Brizzolara,  64  Cal.  354;  Miller  v.  Thompson,  34  Mich.  10;  Wager 
V.  Link,  134  N.  Y.  122;  Hopkins  v.  Warner,  109  Cal.  136.  See  the 
discussion  of  the  subject  in  article  by  Samuel  Williston,  Esq.,  in  15 
Harv.  Law  Rev.  767,  787,  on  "Contracts  for  the  Benefit  of  a  Third 
Person." 

Since,  on  this  theory,  the  mortgagee's  right  of  recovery  arises 
from  the  liability  of  the  grantor,  there  is  no  such  right  if  the  grantor 
is  under  no  liability,  as  when  the  clause  assuming  the  mortgage 
is  in  a  deed  from  a  grantee  of  the  mortgagor,  who  was  not  him- 
self liable.  Ward  v.  De  Oca,  120  Cal.  102;  Osborne  v.  Cabell,  77 
Va.  462;  Trotter  v.  Hughes,  12  N.  Y.  74;  Wise  v.  Fuller,  29  N.  J.  Eq. 
257,  266.  See  15  Harv.  Law  Rev.  104.  When  the  mortgagee's  right  of 
recovery  exists  at  law,  it  would  seem  that  the  nonliability  of  the 
grantor  is  immaterial.  Dean  v.  Walker,  107  111.  541,  47  Am.  Rep,  467; 
Brewer  v.  Maurer,  38  Ohio  St.  543,  43  Am.  Rep.  436;  Merriman  v. 
Moore,  90  Pa.  St.  78;  Hare  v.  Murphy,  45  Neb.  809;  Enos  v.  Sanger,  96 
Wis.  151,  65  Am.  St.  Rep.  38.  But  see  Vrooman  v.  Turner,  69  N.  Y. 
280,  25  Am.  Rep.  195;  Brown  v.  Stillman,  43  Minn.  126. 

229Gamsey  v.  Rogers,  47  N.  Y.  233,  7  Am.  Rep.  440;  Bassett  v. 
Bradley,  48  Conn.  234;  Pardee  v.  Treat,  82  N.  Y.  385.     See  Gaffney 
V.  Hicks,  131  Mass.  124, 
(1220) 


Ch.  35]  MORTGAGES.  §   530 

sumption  of  the  mortgage  debt  by  the  transferee  of  the  land, 
the  mortgagor  may,  it  seems,  release  the  transferee  from  his 
contract  of  assumption,^^*^  and,  according  to  some  cases,  this 
may  be  done  even  after  such  acceptance  by  the  mortgagee.^^^ 

§  529.     The  transferee's  right  to  question  mortgage. 

The  transferee  assuming  the  mortgage  cannot  show  that  it 
is  invalid,  or  that  it  is  not  all  due,  since  the  full  amount  of 
the  mortgage  was  deducted  in  fixing  the  purchase  price  paid 
by  him,  and  the  mortgagor  thereby  devoted  that  portion  of 
the  price  to  the  payment  of  the  mortgage, ^^^  and  the  same 
rule  applies  when  the  property  is  conveyed  without  any 
clause  of  assumption,  but  expressly  subject  to  the  mort- 
gage.^^^ 

§  530.     Transfer  of  part  of  land. 

In  case  distinct  portions  of  the  land  are  conveyed  to  differ- 
ent persons  by  simultaneous  and  similar  conveyances,  and 

230  Carnahan  v.  Tousey,  93  Ind.  561;  Gilbert  v.  Sanderson,  56 
Iowa,  349,  41  Am.  Rep.  103;  Gifford  v.  Corrigan,  105  N.  Y.  223,  15 
Am.  St.  Rep.  508;  Jones  v.  Higgins,  80  Ky.  409.  But  that  the 
grantee's  liability  on  his  contract  of  assumption  cannot  be  re- 
leased by  the  grantor,  see  Bay  v.  Williams,  112  111.  91,  54  Am. 
Rep.  209;  3  Pomeroy,  Eq.  Jur.  §  1206,  p.  1846,  note. 

231  Crowell  V.  Hospital  of  St.  Barnabas,  27  N.  J.  Eq.  650;  O'Neill 
V.  Clark,  33  N.  J.  Eq.  444;   Biddel  v.  Brizzolara,  64  Cal.  354. 

232  Parkinson  v.  Sherman,  74  N.  Y.  88,  30  Am.  Rep.  268;  Ritter 
V.  Phillips,  53  N.  Y.  586;  Dean  v.  Walker,  107  111.  540,  47  Am.  Rep. 
467;  Clapp  v.  Halliday,  48  Ark.  258;  Crawford  v.  Edwards,  33  Mich. 
354;  Fitzgerald  v.  Barker,  85  Mo.  13;  De  Wolf  v.  Johnson,  10  Wheat. 
(U.  S.)  367;  Hough  v.  Horsey,  36  Md.  181,  11  Am.  Rep.  484;  Cramer 
V.  Lepper,  26  Ohio  St.  59,  20  Am.  Rep.  756;  Skinner  v.  Reyuick,  10 
Neb.  323,  35  Am.  Rep.  479. 

233  Sweetzer  v.  Jones,  35  Vt.  317;  Riley  v.  Rice,  40  Ohio  St.  441; 
Green  v.  Turner,  38  Iowa,  112;  Sands  v.  Church,  6  N.  Y.  347;  Maher 
V.  Lanfrom,  86  111.  513;  Freeman  v.  Auld,  44  N.  Y.  50;  Pratt  v. 
Nixon,  91  Ala.  192;  Johnson  v.  Thompson,  129  Mass.  398;  Alt.  v. 
Banholzer,  36  Minn.  57.     See  Bennett  v.  Bates,  94  N.  Y.  354. 

(1221) 


§    530  REAL  PROPERTY.  [Ch.  35 

there  is  in  no  one  of  such  conveyances  a  clause  by  which  the 
transferee  assumes  the  mortgage,  each  portion  is  liable  for 
a  part  of  the  mortgage  debt,  proportioned  to  the  value  of  his 
portion  of  the  land,  and,  if  one  such  person  pays  an  amount 
greater  than  his  proportional  share,  he  is  entitled  to  contri- 
bution from  the  owners  of  the  other  portions.^^* 

This  requirement  of  proportional  contribution  is,  however, 
frequently  modified  in  consideration  of  the  equities  of  the 
case.  The  most  ordinary  instance  of  such  equitable  modifi- 
cation of  the  rule  occurs  when  the  original  mortgagor,  or  a 
subsequent  owner  of  the  whole,  has  transferred  part  of  the 
mortgaged  land  to  one  person,  either  retaining  the  residue, 
or  transferring  it  subsequently  to  another.  If  the  owner 
transfers  a  part  of  the  land  by  warranty  deed  or  its  equiva- 
lent, and  retains  the  residue,  it  is  considered  equitable  that 
the  part  retained  should  be  liable  for  the  whole  incumbrance, 
rather  than  that  payment  should  be  partly  imposed  on  the 
part  transferred ;  and  if  the  transferee  pays  the  mortgage 
debt,  he  is  entitled  to  contribution  from  the  grantor  to  the 
extent  of  the  value  of  the  land  retained,  and,  if  this  exceeds 
the  debt,  to  complete  exoneration.^^"''  On  the  other  hand,  if 
the  original  owner  pays  the  amount  of  the  mortgage,  since 

2343  Pomeroy,  Eq.  Jur.  §  1222;  Swaine  v.  Perine,  5  Johns.  Ch. 
(N.  Y.)  482,  9  Am.  Dec.  318;  Chase  v.  Woodbury,  6  Cush.  (Mass.) 
143;  Bailey  v.  Myrick,  50  Me.  171;  Hall  v.  Morgan,  79  Mo.  47; 
Brown  v.  Simons,  44  N.  H.  475;  Alley  v.  Rogers,  19  Grat.  (Va.) 
366. 

So,  if  one  tenant  in  common  pays  a  greater  part  of  the  mortgage 
debt  than  is  proportioned  to  his  interest  in  the  land,  he  is  entitled 
to  contribution  from  the  other  tenants  in  common.  Simpson  v. 
Gardiner,  97  111.  237;  Lyon  v.  Robbins,  45  Conn.  513. 

23.-,  Aldrich  v.  Cooper,  2  White  &  T.  Lead.  Cas.  Eq.  p.  291  et  seq., 
notes;  Lock  v.  Fulford,  52  111.  166;  Windsor  v.  Evans,  72  Iowa,  692; 
Gumming  v.  Gumming,  3  Ga.  460;  Clowes  v.  Dickenson,  5  Johns.  Ch. 
(N.  Y.)  235;  Engle  v.  Haines,  5  N.  J.  Eq.  186,  43  Am.  Dec.  624; 
Caruthers  v.  Hall,  10  Mich.  40. 

(1222) 


Ch.  35]  MORTGAGES.  JJ  530 

this  is  merely  a  compliance  with  his  looal  ohliiijii  ion,  he 
carinot  demand  any  contribution  from  his  transfcroe.''"' 

If,  after  having  thus  conveyed  part  of  the  mortgnii'fMl  land, 
the  original  owner  conveys  the  part  retained  to  another  per- 
son, the  second  transferee  stands  in  his  place,  and,  as  against 
the  prior  transferee,  the  land  last  transferred  is  liable  for  the 
mortgage  debt.  If,  instead  of  transferring  the  whole  of  the 
land  retained  by  him,  the  original  owner  transfers  a  part 
thereof  only,  the  part  still  retained  by  him  is  equitably  first 
liable  for  the  whole  debt,  and,  if  that  is  insufficient,  then  the 
part  last  transferred  should  be  charged  for  the  deficiency, 
rather  than  that  first  transferred,  since  the  second  transferee 
took  the  land  in  the  same  condition  in  which  it  was  in  tlie 
hands  of  the  grantor.  Thus,  the  different  parts  of  the  mort- 
gaged land  are  liable  ''in  the  inverse  order  of  alienation. "-•'^^ 
In  two  or  three  states  only  does  a  contrary  rub;  prevail,  to 
the  effect  that  transferees  at  different  times  are  liable  in  jiro- 
portion  to  the  amount  of  their  interests. ^"^^ 

Since  this  doctrine  of  liability  in  the  invei-se  order  of 
alienation  arises  from  the  obligation  of  the  eomnion  grantor, 
as  against  the  various  grantees,  to  pay  off  the  mortgage,  it 
does  not  arise  wdien  no  such  obligation  exists.  Consequently, 
if  the  transferee  assumes  payment  of  the  mortgage,  the  gran- 

23G  Chase  v.  Woodbury,  6  Gush.  (Mass.)  143;  Pollard  v.  Noyes. 
60  N.  H.  184;  Henderson  v.  Truitt,  95  Ind.  309;  3  Pomeroy,  Eq.  Jur. 
§  1224;   2  Jones,  Mortgages,  §  1090.     See  post,  §  545. 

237  Clowes  V.  Dickenson,  5  Johns.  Ch.  (N.  Y.)  235;  Cumming  v. 
Cumming,  3  Ga.  460;  George  v.  Wood,  9  Allen  (Mass.)  80,  85  Am. 
Dec.  741;  Crosby  v.  Farmers'  Bank  of  Andrew  County,  107  Mo.  436; 
Brown  v.  Simons,  44  N.  H.  475;  Cheever  v.  Fair,  5  Cal.  337;  Stern- 
berger  v.  Hanna.  42  Ohio  St.  305;  Miller  v.  Rogers,  49  Tex.  398; 
Iglehart  v.  Crane.  42  111.  261;  Ireland  v.  Woolman.  15  Mich.  253; 
Sanford  v.  Hill,  46  Conn.  42;  Sheperd  v.  Adams.  32  Me.  63;  Cow- 
den's  Estate,  1  Pa.  St.  267;  Lyman  v.  Lyman,  32  Vt.  79,  76  Am. 
Dec.   151. 

238  Dickey  v.  Thompson,  8  B.  Mon.  (Ky.)  312;  Bates  v.  Ruddlck, 
2  Iowa,  423;    Barney  v.  Myers.  28  Iowa,  472. 

(1228) 


§   530  REAL  PROPERTY.  [Ch.  35 

tee's  land  becomes  primarily  liable  for  the  mortgage  debt  ;^^* 
and  tbe  same  result  follows  if  the  transfer  is  expressly  "sub- 
ject" to  the  mortgage,^^*^  and  in  such  cases  the  grantor  and 
his  subsequent  transferees  are  entitled  to  contribution  or 
exoneration  at  the  expense  of  the  grantee's  land.  Moreover, 
the  doctrine  is  not  applied  in  case  the  prior  conveyance  by 
the  original  owner  is  not  a  warranty  deed,  or  otherwise  such 
a  conveyance  as  to  render  it  the  duty  of  such  owner  to  dis- 
charge the  mortgage.^^^  Although  the  transferee  be  other- 
wise entitled  to  have  the  land  of  a  subsequent  transferee  first 
applied  upon  the  mortgage,  he  may  lose  this  right  by  failure 
to  record  his  transfer,  if  the  result  is  that  the  subsequent 
transferee  takes  without  notice  of  the  previous  transfer,  and 
of  the  consequent  increased  burden  on  the  land  transferred 
to  him;^^^  and  the  rule  may  be  made  inapplicable  by  a  stipu- 
lation between  the  persons  interested,  charging  the  mortgage 
upon  the  land  in  a  different  manner.-^^ 

The  mortgagee,  if  he  has  notice  of  the  transfer  of  a  part 
or  parts  of  the  mortgaged  land,  cannot  release  any  part,  to 

239  Thompson  v.  Bird,  57  N.  J.  Eq.  175;  Bowne  v.  Lynde,  91  N. 
y.  92;  Driiry  v.  Holden,  121  111.  130;  Welch  v.  Beers,  8  Allen  (Mass.) 
151. 

2io3  Pomeroy,  Eq.  Jur.  §§  1205,  1225;  Engle  v.  Haines,  5  N.  J.  Eq. 
186;  Johnson  v.  Zink,  51  N.  Y.  333;  Sweetzer  v.  Jones,  35  Vt.  317, 
82  Am.  Dec.  639;  Briscoe  v.  Power,  47  111.  447;  Burger  v.  Grief, 
55  Md.  518;   Carpenter  v.  Koons,  20  Pa.  St.  222. 

2413  Pomeroy,  Eq.  Jur.  §  1225;  2  AVhite  &  T.  Lead.  Cas.  Eq.  (4th 
Am.  Ed.)  29G,  303;  Aiken  v.  Gale,  37  N.  H.  501;  Carpenter  v.  Koons, 
20  Pa.  St.  222;  Erlinger  v.  Boul,  7  111.  App.  40;  Aderholt  v.  Henry, 
87  Ala.  415;  Steinmeyer  v.  Steinmeyer,  55  S.  C.  9.  See  In  re  Jones 
[1893]  2  Ch.  461. 

2-42  3  Pomeroy,  Eq.  Jur.  §  1225;  2  White  &  T.  Lead.  Cas.  Eq.  297; 
Chase  v.  Woodbury,  6  Cush.  (Mass.)  143;  Brown  v.  Simons,  44  N. 
H.  475;   Hunt  v.  Mansfield,  31  Conn.  488. 

24:iHoy  V.  Bramhall,  19  N.  J.  Eq.  563,  97  Am.  Dec.  687;   Hopkins 
V.   Wolley,   81   N.  Y.  77;    Zabriskie  v.   Salter,   80  N.   Y.   555;    Mooro 
V.  Shurtleff,  128  111.  370;  Mickle  v.  Maxfi'eld,  42  Mich.  304. 
(12lH) 


Ch.  35j  MORTGAGES.  §  531 

the  injury  of  the  owners  of  other  parts,  and,  by  a  release  of 
a  part  which  is  either  concurrently  or  primarily  liable,  he 
to  that  extent  extinguishes  the  lien.  So,  when  the  several 
parts  in  the  hands  of  different  grantees  are  liable  in  propor- 
tion to  their  value,  as  having  been  conveyed  by  concurrent 
and  similar  conveyances,  a  release  of  one  part  extinguishes 
the  mortgage  lien  in  favor  of  the  other  parts,  to  the  extent 
to  which  such  part  would  be  liable,  measured  by  its  propor- 
tional value  ;-"*^  and  so,  when  a  part  primarily  liable,  as  hav- 
ing been  last  transferred,  is  released,  the  lien  is  extinguished 
to  the  extent  of  the  value  of  the  land  so  released.^^^ 

IV.     The  Transfer  of  a  Mortgage. 

A  mortgage  may,  except  in  rare  cases,  be  transferred  by  the 
mortgagee.  The  transfer  may  be  by  an  express  writing  to 
that  effect,  or  may  be  by  a  mere  assignment  of  the  debt  secured 
by  the  mortgage.  An  assignment  of  the  mortgage  without 
the  debt  vests  in  the  transferee,  at  most,  a  bare  legal  title, 
which  he  holds  in  trust  for  the  owner  of  the  debt. 

An  assignment  of  a  mortgage  must  generally  be  recorded  in 
order  to  be  effective  as  against  one  claiming  under  a  subsequent 
transfer  or  release  of  the  mortgage  by  the  mortgagee. 

§  531.     Express  transfer  of  mortgage. 

The  form  of  transfer  or  assignment  of  a  mortgage  differs 
greatly  in  the  different  states,  a  concise  form  being  fre- 
quently specified  by  statute  as  sufficient.     Generally,  as  will 

244  3  Pomeroy,  Eq.  Jur.  §  1226;  Taylor  v.  Short's  Adm'r,  27  Iowa, 
361,  1  Am.  Rep.  280;  Birnie  v.  Main,  29  Ark.  591;  Johnson  v.  Rice, 

8  Me.  157;  Parkman  v.  Welch,  19  Pick.  (Mass.)  231;  Stevens  v. 
Cooper,  1  Johns.  Ch.  (N.  Y.)  425;  Deuster  v.  McCamus,  14  Wis.  307. 

245  Howard  Ins.  Co.  v.  Halsey,  8  N.  Y.  271,  59  Am.  Dec.  478;  Gas- 
kill  V.  Sine,  13  N.   J.  Eq.  400,   78  Am.   Dec.   105;    George  v.  Wood, 

9  Allen  (Mass.)  80,  85  Am.  Dec.  741;  Paxton  v.  Harrier,  11  Pa.  St. 
312;  Burson  v.  Blackley,  67  Tex.  5;  Brown  v.  Simons,  44  N.  H. 
475. 

(1225) 


§   532  I^EAL  PROPERTY.  [Ch.    35 

appear  hereafter,  the  mortgage  debt,  as  well  as  the  mortgage, 
should  be  expressly  assigned,  or  the  evidence  thereof  deliv- 
ered, and  the  assignment  should  be  recorded. 

On  the  common-law  theory  of  the  character  of  a  mortgage, 
which  regards  the  legal  title  as  vested  in  the  mortgagee,  the 
only  mode  of  transferring  such  title  is  by  a  formal  convey- 
ance similar  to  that  required  in  the  case  of  other  transfers 
of  estates  in  land,  and,  accordingly,  such  a  conveyance  is  in 
some  states  necessary  for  the  transfer  of  all  the  rights  of  the  . 
mortgagee.^'**'  Provided  the  mortgagee's  interest  in  the  land 
is  transferred,  the  exact  fonn  of  the  conveyance  is  imma- 
terial, and,  accordingly,  either  a  warranty  or  quitclaim  deed, 
or  a  deed  of  release,  is  sufficient  to  transfer  the  legal  title, 
although  the  mortgage  is  not  specifically  referred  to.-'*'^ 

§  532.     Transfer  of  mortgage  debt. 

In  addition  to  the  modes  of  transfer  involving  an  express 
conveyance  of  the  mortgagee's  interest  in  the  land,  or  an  as- 
signment of  the  mortgage  eo  nO)mne,  there  is  a  mode  of  as- 
signment, of  even  greater  importance,  growing  out  of  the 
equitable  principle  that  the  debt  secured  is  the  principal 
thing,  and  the  mortgage  securing  it  merely  an  incident. 
Upon  this  principle  it  is  recognized,  in  some  states  in  courts 
of  equity  only,  but  in  others  in  courts  of  law  as  well,  that  an 
assignment  of  the  debt,  however  evidenced,  effects  an  assign- 
ment of  the  mortgage,  conferring  upon  the  assignee  of  the 

240  Douglass  V.  Durin,  51  Me.  121;  Smith  v.  Kelley,  27  Me.  237, 
46  Am.  Dec.  595;  Warden  v.  Adams,  15  Mass.  233,  Kirchwey's  Cas. 
626;  Adams  v.  Parker,  12  Gray  (Mass.)  53;  Torrey  v.  Deavitt,  53 
Vt.  331;  Sanders  v.  Cassady,  86  Ala.  246;  Barrett  v.  Hinckley,  124 
111.  32,  57  Am.  St.  Rep.  331,  Kirchwey's  Cas.  634;  Williams  v. 
Teachey,  85  N.  C.  402;   Givan  v.  Doe,  7  Blackf.  (Ind.)  210. 

247  Welsh  V.  Phillips,  54  Ala.  309;  Hunt  v.  Hunt,  14  Pick.  (Mass.) 
374,  25  Am.  Dec.  400;  Douglass  v.  Durin.  51  Me.  121;  Welch  v. 
Priest,  8  Allen  (Mass.)  165;  Ruggles- v.  Barton,  13  Gray  (Mass.) 
506;   Collamer  v.  Langdon,  29  Vt.  32;   Cole  v.  Edgerly,  48  Me.  108. 

(1226) 


Ch.    35]  MORTGAGES.  i^  533 

debt  tlu'  rights  aiul  renifdios  of  the  original  mortgagee,  ex- 
cept in  so  far  as  these  are  based  upon  a  legal  title  in  the  mort- 
gagee.^'*^ And  a  merely  oral  assignment  of  the  debt  is  suffi- 
cient to  transfer  the  mortgage  under  this  rule.^^'*  Such  a 
transfer  of  the  debt  cannot,  however,  in  those  states  in  which 
a  legal  title  to  the  land  is  regarded  as  existent  in  the  mort- 
gage, have  the  effect  of  transferring  such  title,^^"  but  it  will 
be  regarded  as  held  in  trust  for  the  transferee  of  the  dobt.-^^ 

§  533.     Transfer  of  part  of  debt. 

The  principle  that  an  assignment  of  the  debt  involves  an 
assigTiment  of  the  mortgage  security  applies  in  the  case  of  an 
assignment  of  a  part  only  of  the  debt,  which  is  usually  ef- 
fected by  a  transfer  of  one  of  several  notes  evidencing  the 
debt,  and  in  such  cases  the  assignee  is  entitled  to  share  in 

248  Carpenter  v.  Longan,  16  Wall.  (U.  S.)  271;  Green  v.  Hart,  1 
Johns.  (N.  Y.)  580,  Kirchwey's  Cas.  622;  Lawrence  v.  Knap,  1 
Root  (Conn.)  248,  1  Am.  Dec.  42,  Kirchwey's  Cas.  621;  Herring  v. 
Woodhull,  29  111.  92,  81  Am.  Dec.  296;  Stewart  v.  Preston,  1  Fla. 
11,  44  Am.  Dec.  621;  Perkins  v.  Sterne,  23  Tex.  561,  76  Am.  Dec. 
72;  Connecticut  Mut.  Life  Ins.  Co.  v.  Talbot,  113  Ind.  373,  3  Am. 
St.  Rep.  655;  Morris  v.  Bacon,  123  Mass.  58,  25  Am.  Rep.  17;  Cros- 
by V.  Roub,  16  Wis.  616,  84  Am.  Dec.  720;  Mitchell  v.  Ladew,  36 
Mo.  526,  88  Am.  Dec.  156;  Bank  of  Indiana  v.  Anderson,  14  Iowa, 
544,  83  Am.  Dec.  390;  Runyan  v.  Mersereau,  11  Johns.  (N.  Y.) 
534,  6  Am.  Dec.  393;   3  Pomeroy,  Eq.  Jur.  §  1210. 

249  Pease  v.  Warren,  29  Mich.  9,  18  Am.  Rep.  58;  Rigney  v.  Love- 
joy,  13  N.  H.  247;  Pratt  v.  Bennington  Bank,  10  Vt.  293,  33  Am. 
Dec.  201;  Fred  Miller  Brewing  Co.  v.  Manasse,  99  Wis.  99,  67  Am. 
St.  Rep.  854;  Perkins  v.  Sterne,  23  Tex.  561,  76  Am.  Dec.  72;  Run- 
yan V.  Mersereau,  11  Johns.  (N.  Y.)  534,  6  Am.  Dec.  393. 

250CottrelI  V.  Adams,  2  Biss.  351,  Fed.  Cas.  No.  3,272;  Smith  v. 
Kelley,  27  Me.  237,  46  Am.  Dec.  595;  Bailey  v.  Winn.  101  Mo.  649; 
Young  V.  Miller,  6  Gray  (Mass.)  152;  Barrett  v.  Hinckley,  124  111. 
32,  7  Am.  St.  Rep.  331,  Kirchwey's  Cas.  634. 

251  Jordan  v.  Cheney,  74  Me.  359;  Barrett  v.  Hinckley,  124  111.  32. 
7  Am.  St.  Rep.  331,  Kirchwey's  Cas.  634;  Crane  v.  March,  4  Pick. 
(Mass.)  131,  16  Am.  Dec.  329;  Morris  v.  Bacon.  123  Mass.  58,  25  Am. 
Rep.  17. 

(1227) 


§  533  REAL  PROPERTY.  [Ch.  35 

the  benefit  of  the  mortgage  security.  ^'^^  When  the  various 
notes  secured  bj  the  mortgage  are  transferred  to  different 
persons,  a  question  arises  as  to  the  respective  priorities  of 
those  persons  in  case  the  mortgaged  land  is  not  sufficient  to 
pay  all  the  notes  in  full.  In  some  states  the  rule  has  been 
adopted  that,  if  the  notes  in  the  hands  of  different  persons 
mature  at  different  times,  as  is  usually  the  case,  they  are 
entitled  to  priority,  as  regards  the  benefit  of  the  mortgage, 
in  the  order  of  their  maturity.^^^  In  other  states,  the  assign- 
ees of  the  different  notes  are  entitled  to  share  in  the  proceeds 
of  the  mortgaged  land  in  proportion  to  the  amounts  of  their 
respective  notes,  without  reference  to  the  time  of  their  ma- 
turity.^^^  The  rights  of  the  assignees  of  the  notes  in  this 
respect  may  also  be  controlled  by  an  express  stipulation  in 

252  Page  V.  Pierce,  26  N.  H.  317,  Kirchwey's  Cas.  630;  Sargent  v. 
Howe,  21  111.  148;  Anderson  v.  Baumgartner,  27  Mo.  80;  Studebaker 
Bros.  Mfg.  Co.  V.  McCargur,  20  Neb.  500;  Patrick's  Appeal,  105  Pa. 
St.  356;  Miller  v.  Rutland  &  W.  R.  Co.,  40  Vt.  399,  94  Am.  Dec.  414. 

253  Grapengether  v.  Fejervary,  9  Iowa,  163,  74  Am.  Dec.  336; 
Isett  V.  Lucas,  17  Iowa,  503,  85  Am.  Dec.  572;  Wood  v.  Trask,  7 
Wis.  566,  76  Am.  Dec.  230;  Mitchell  v.  Ladew,  36  Mo.  526,  88  Am. 
Dec.  156;  State  Bank  v.  Tweedy,  8  Blackf.  (Ind.)  447,  46  Am.  Dec. 
486;  Minor  v.  Hill,  58  Ind.  176,  26  Am.  Rep.  71;  Winters  v.  Frank- 
lin Bank  of  Cincinnati,  33  Ohio  St.  250;  Funk  v.  McReynold's  Adm'rs, 
33  111.  481;  Wilson  v.  Hay  ward,  6  Fla.  171;  Anderson  v.  Sharp,  44 
Ohio  St.  260. 

But  even  where  this  rule  is  recognized,  if  the  mortgage  provides 
that,  on  default  in  payment  of  one  of  the  notes,  all  shall  become 
due,  upon  such  default  all  are  entitled  to  share  equally.  Bushfield 
V.  Meyer,  10  Ohio  St.  334;  Pierce  v.  Shaw,  51  Wis.  316;  Whitehead 
V.  Morrill,  108  N.  C.  65.  Contra,  Leavitt  v.  Reynolds,  79  Iowa,  348; 
Horn  V.  Bennett,  135  Ind.  158,  24  L.  R.  A.  800. 

25*  Donley  v.  Hays,  17  Serg.  &  R.  (Pa.)  400;  Parker  v.  Mercer, 
6  How.  (Miss.)  320,  38  Am.  Dec.  438;  Penzel  v.  Brookmire,  51  Ark, 
105,  14  Am.  St.  Rep.  23;  Jennings  v.  Moore,  83  Mich.  231,  21  Am. 
St.  Rep.  601;  Perry's  Appeal,  22  Pa.  St.  43,  60  Am.  Dec.  63;  Dixon 
V.  Clayville,  44  Md.  573;  Lovell  v.  Cragin,  136  U.  S.  147;  Eastman 
v.  Foster,  8  Mete.   (Mass.)   IS. 

(1228) 


Ch.  35 J  MORTGAGES.  §  534 

the  mortgage,  or  by  an  agi'eement  made  at  the  time  of  assign- 
ing a  note,  as  to  the  order  of  priority.  ^^^ 

Occasionally,  though  not  usually,  the  view  has  been  taken 
that  a  mortgagee  Avho  assigns  one  or  more  of  the  notes,  retain- 
ing the  balance,  cannot  claim  to  share  in  the  benefit  of  the 
mortgage  security  as  against  his  assignee,  since  he  is  pre- 
sumed to  have  been  paid  by  the  latter  the  value  of  the  notes 
assigned,-^^  and  it  seems  to  be  agreed  that  a  contract  to  this 
effect  is  to  be  presumed  from  the  fact  that  the  mortgage  is 
assigned  with  the  notes.^^'^  Likewise,  if  the  mortgagee  is 
a  surety  for  the  payment  of  the  note,  he  cannot  claim  a  part 
of  the  benefit  of  the  mortgage  as  against  his  assignee.^^® 

§  534.     Transfer  of  mortgage  without  debt. 

Even  in  the  states  which  adhere  to  the  common-law  view 
of  a  mortgage,  the  assignment  of  the  mortgage  merely,  or 
of  the  mortgagee's  interest  in  the  land,  without  an  assign- 
ment of  the  debt,  or  of  the  note  or  bond  evidencing  the  debt, 
transfers,  at  most,  the  bare  legal  title,  which  the  assignee  will 
hold  in  trust  for  the  owner  of  the  debt.^^^    In  the  states  which 

255  Walker  v.  Dement,  42  111.  272;  Granger  v.  Crouch,  86  N.  Y.  494 
Morgan  v.  Kline,  77  Iowa,  681;  Norton  v.  Palmer,  142  Mass.  433 
Ellis  V.  Lamme,  42  Mo.  153;  Howard  v.  Schmidt,  29  La.  Ann.  129 
Chew  V.  Buchanan,  30  Md.  367;   McLean's  Appeal,  103  Pa.  St.  255 

256  Parkhurst    v.    Watertown    Steam    Engine    Co.,    107    Ind.    595 
Knight  V.  Ray,  75  Ala.  383.     Contra,  Dixon  v.  Clayville,  44  Md.  573 
Donley  v.  Hays,  17  Serg.  &  R.   (Pa.)  400;   Patrick's  Appeal,  105  Pa. 
St.  356;   Keyes  v.  Wood,  21  Vt.  33L 

257  Bryant  v.  Damon,  6  Gray  (Mass.)  564;  Foley  v.  Rose,  123  Mass. 
557;  Langdon  v.  Keith,  9  Vt.  300;  Solberg  v.  Wright,  33  Minn.  224; 
Miller  v.  Washington  Sav.  Bank,  5  Wash.  200. 

258  Whitehead  v.  Morrill,  108  N.  C.  65;  Fourth  Nat.  Bank's  Appeal, 
123  Pa.  St.  484,  10  Am.  St.  Rep.  538. 

259  Welsh  V.  Phillips,  54  Ala.  309,  25  Am.  Rep.  679;  Farrell  v.  Lewis, 
56  Conn.  280;  Sanger  v.  Bancroft,  12  Gray  (Mass.)  365;  Williams 
V.  Teachey,  85  N.  C.  402;  Collamer  v.  Johnson,  29  Vt.  32;  Barrett 
V.  Hinckley,  124  111.  32,  7  Am.  St.  Rep.  331,  Kirchwey's  Cas.  634. 

A  transfer  by  the  mortgagee  of  his  interest  in  the  land,  without 

(1229) 


§   535  REAL  PROPERTY.  [Ch.    35 

have  adopted  the  lien  theory,  the  assignment  of  the  mort- 
gage, or  conveyance  of  the  land  by  the  mortgagee,  without 
reference  to  the  debt,  is  regarded  as  a  mere  nnllity.^^'^ 

§  535.     Freedom  of  transfer  from  equities. 

If  the  note  or  other  obligation  secured  by  the  mortgage  is 
not  negotiable,  the  assignee  thereof,  like  any  other  assignee 
of  a  non-negotiable  chose  in  action,  takes  it  subject  to  all 
equities  and  defenses  which  existed  as  between  the  original 
parties,  such  as  illegality,  failure  of  consideration,  part  pay- 
ment, and  the  like.-*^^  In  some  cases,  however,  one  who 
makes  and  delivers  a  mortgage  in  favor  of  another  person, 
which  is  valid  on  its  face,  is  estopped,  as  against  an  assigTiee 
of  such  mortgage,  to  assert  the  invalidity  of  the  mortgage.^^^ 

the  debt,  is,  even  in  some  of  tliese  states,  regarded  as  an  absolute 
nullity.  Devlin  v.  Collier,  53  N.  J.  Law,  422;  Delano  v.  Bennett,  90 
111.  533;  Lunt  v.  Lunt,  71  Me.  377;  Ellison  v.  Daniels,  11  N.  H.  275. 
But  sometimes,  apparently,  a  conveyance  by  the  mortgagee  of  the 
land  is  construed  as  intended  to  transfer  the  mortgage  debt  also. 
Woods  v.  Woods,  66  Me.  206;  Connor  v.  Whitmore,  52  Me.  186; 
Ruggles  v.  Barton,  13  Gray  (Mass.)  506;  Dearnaley  v.  Chase,  136 
Mass.  290. 

260  Jackson  v.  Bronson,  19  Johns.  (N.  Y.)  325,  Kirchwey's  Cas.  629; 
Peters  v.  Jamestown  Bridge  Co.,  5  Cal.  334,  63  Am.  Dec.  134;  Jordan  v. 
Sayre,  29  Fla.  100;  Johnson  v.  Cornett,  29  Ind.  59;  Merritt  v.  Bartho- 
lick,  36  N.  Y.  44,  Finch's  Cas.  1113;  Swan  v.  Yaple,  35  Iowa,  248;  Greve 
v.  Coffin,  14  Minn.  345  (Gil.  263),  100  Am.  Dec.  229;  McCammant  v. 
Roberts,  87  Tex.  241;  Perkins  v.  Sterne,  23  Tex.  561,  76  Am.  Dec.  72. 

^«i  Matthews  v.  Wallwyn,  4  Ves.  118,  Kirchwey's  Cas.  643;  Vreden- 
burgh  V.  Burnet,  31  N.  J.  Eq.  229;  James  v.  Moray,  2  Cow.  (N.  Y.) 
246,  14  Am.  Dec.  475;  Ingraham  v.  Disborough,  47  N.  Y.  421;  Crane 
V.  Turner,  67  N.  Y.  437;  Moffatt  v.  Hardin,  22  S.  C.  9;  Olds  v.  Cum- 
mings,  31  111.  188,  Kirchwey's  Cas.  662;  Nichols  v.  Lee,  10  Mich. 
526,  82  Am.  Dec.  57;  Mott  v.  Clark,  9  Pa.  St.  399,  49  Am.  Dec.  566; 
Horstman  v.  Gerker,  49  Pa.  St.  282,  88  Am.  Dec.  501;  Fish  v.  French, 
15  Gray  (Mass.)  520;  Moffett  v.  Parker,  71  Minn.  139,  70  Am.  St. 
Rep.  319. 

2C2  Webb  v.  Commissioners  of  Heme  Bay,  L.  R.  5  Q.  B.  642,  Kirch- 
wey's Cas.  649;  Com.  v.  City  of  Pittsburgh,  34  Pa.  St.  496,  520;  Mc- 

(1230) 


Ch.  35]  MORTGAGES.  5j   535 

The  question  whether  the  assignee  of  the  mortgage  takes 
free  from  the  equities  of  others  than  the  mortgagor  is  deter- 
mined by  the  general  rule  prevailing  in  the  particular  juris- 
diction as  to  the  rights  of  assignees  of  choses  in  action.  The 
more  usual  rule  is  that  the  assignee  of  any  non-negotiable 
chose  in  action  takes  it  free  from  any  latent  equities  in  favor 
of  persons  other  than  the  obligor,  since  he  has  no  means  of 
knowing  where  to  inquire  as  to  such  equities,  and  this  rule 
has  been  applied  in  favor  of  the  assignee  of  a  mortgage.^**^ 

In  some  cases  the  view  is  taken  that,  since  the  mortgage  is 
merely  an  incident  to  the  debt,  if  the  note  secured  is  nego- 
tiable, the  benetit  of  the  rule  applicable  to  negotiable  instru- 
ments will  extend  to  the  mortgage,  and  render  it  enforceable 
for  the  full  amount,  without  reference  to  equities  existing 
between  the  original  parties;-^'*  but  in  others  it  is  held  that 
the  negotiability  of  the  note  secured  is  immaterial,  and  that 
the  assignee  of  the  mortgage,  whether  by  mere  transfer  of 

Masters  v.  Wilhelm,  85  Pa.  St.  218;  First  Nat.  Bank  v.  Stiles,  22 
Hun  (N.  Y.)  339;  State  Bank  v.  Flathers,  45  La.  Ann.  75.  And  see 
Bickerton  v.  Walker,  31  Ch.  Div.  151.  But  see,  to  the  contrary,  Davis 
V.  Bechstein,  69  N.  Y.  440,  Kirchwey's  Cas.  691;  Hill  v.  Hoole,  116 
N.  Y.  299. 

^«3  Goldthwaite  v.  First  Nat.  Bank  of  Montgomery,  67  Ala.  549; 
Silverman  v.  Bullock.  98  111.  11;  Vredenburgh  v.  Burnet,  31  N.  J.  Eq. 
229;  Moffett  v.  Parker,  71  Minn.  139,  70  Am.  St.  Rep.  319;  Losey  v. 
Simpson,  11  N.  J.  Eq.  246;  Mott  v.  Clark,  9  Fa.  St.  399,  49  Am.  Dec. 
566.  The  New  York  rule  is  that  the  assignee  takes  subject  to  such 
equities.  Bush  v.  Lathrop,  22  N.  Y.  535;  Trustees  of  Union  College 
V.  Wheeler,  61  N.  Y.  88,  Kirchwey's  Cas.  681. 

-'•i  Carpenter  v.  Longan,  IC  Wall.  (U.  S.)  271,  Kirchwey's  Cas. 
675;  Paige  v.  Chapman,  58  N.  H.  333,  Kirchwey's  Cas.  679;  Burhans 
V.  Hutcheson,  25  Kan.  625,  37  Am.  Rep.  274;  Duncan  v.  City  of  Louis- 
ville, 13  Bush  (Ky.)  378,  26  Am.  Rep.  201;  Webb  v.  Hoselton,  4  Neb. 
308,  19  Am.  Rep.  638;  Kelley  v.  Whitney,  45  Wis.  110,  30  Am.  Rep. 
697;  Taylor  v.  Page,  6  Allen  (Mass.)  86;  Keyes  v.  Wood,  21  Vt.  331; 
Pierce  v.  Faunce.  47  Me.  507;  Barnum  v.  Phenix,  60  Mich.  388; 
Thompson  v.  Maddux,  117  Ala.  468.  Compare  Blumenthal  v.  Jassoy, 
29  Minn.  177.     See  1  Daniel.  Neg.  Inst.  (4th  Ed.)   S§  834-834b. 

(1231) 


g   536  REAL  PROPERTY.  [Ch.  35 

the  note  or  otherwise,  takes  subject  to  all  existing  equities, 
in  favor  of  the  mortgagor  at  least.^^^ 

§  536.     Record  and  notice. 

Assignments  of  mortgages  are  usually  regarded  as  being 
within  the  operation  of  the  recording  acts,  this  being  some- 
times expressly  provided  by  the  statute.  ^"^^  The  require- 
ment that  the  assignment  shall  be  recorded  does  not,  however, 
render  an  unrecorded  assignment  invalid,  but  merely  pre- 
vents the  assignee  in  such  an  assignment  from  asserting  any 
rights  as  against  persons  who  acted  on  the  assumption  that 
the  mortgage  still  belonged  to  the  mortgagee.^^^     An  ordi- 

265Baily  v.  Smith,  14  Ohio  St.  396,  84  Am.  Dec.  385,  Kirchwey's 
Cas.  667;  Tabor  v.  Foy,  56  Iowa,  539;  Kleeman  v.  Frisbie,  63  111. 
482;  Johnson  v.  Carpenter,  7  Minn.  176  (Gil.  120). 

266  Connecticut  Mut.  Life  Ins.  Co.  v.  Talbot,  113  Ind.  373,  3  Am. 
St.  Rep.  655;  Merrill  v.  Luce,  6  S.  D.  354,  55  Am.  St.  Rep.  844;  Rob- 
bins  V.  Larson,  69  Minn.  436,  65  Am.  St.  Rep.  572;  Bacon  v.  Van 
Schoonhoven,  87  N.  Y.  446;  Bank  of  Indiana  v.  Anderson,  14  Iowa, 
544,  83  Am.  Dec.  390;  Pepper's  Appeal,  77  Pa.  St.  373;  Henderson 
V.  Pilgrim,  22  Tex.  464.  But  see  Reeves  v.  Hayes,  95  Ind.  521;  Wat- 
son v.  Dundee  Mortgage  &  Trust  Inv.  Co.,  12  Or.  474. 

The  word  "conveyance"  in  a  recording  act  has  been  held  to  in- 
clude an  assignment  of  mortgage.  Decker  v.  Boice,  83  N.  Y.  220; 
Merrill  v.  Luce,  6  S.  D.  354,  55  Am.  St.  Rep.  844;  Burns  v.  Berry, 
42  Mich.  176.  Contra,  Mott  v.  Clark,  9  Pa.  St.  399,  49  Am.  Dec.  566; 
Watson  V.  Dundee  Mortgage  &  Trust  Inv.  Co.,  12  Or.  474. 

267  purdy  v.  Huntington,  42  N.  Y.  334,  1  Am.  Rep.  532;  Greene 
V.  Warnick,  64  N.  Y.  220;  Bridges  v.  Bidwell,  20  Neb.  185;  Sprague 
V.  Rockwell,  51  Vt.  401. 

If  the  mortgagee  purchases  the  land  after  assigning  the  mortgage, 
a  subsequent  purchaser  from  him  cannot  claim  that  the  mortgage 
was,  as  against  him,  extinguished  by  merger,  on  the  ground  that, 
because  the  assignment  was  not  recorded,  he  had  reason  to  believe 
that  the  mortgage  belonged  to  the  mortgagee  at  the  time  when  the 
latter  owned  the  land.  Purdy  v.  Huntington,  42  N.  Y.  334,  1  Am. 
Rep.  532;  Oregon  &  Washington  Trust  Inv.  Co.  v.  Shaw,  5  Sawy. 
336,  Fed.  Cas.  No.  10,556;  1  Jones,  Mortgages,  §  482.  Contra,  Bowl- 
ing V.  Cook,  39  Iowa,  200.  Compare  International  Bank  of  Chicago 
V.  Wilshire,  108  111.  143. 
(1232) 


Ch.   35J  MORTGAGES.  g   53f, 

narj  instance  of  the  failure  to  record  the  assignment  thus 
resulting  in  misleading  third  persons  occurs  in  the  case  of  a 
purchase  of  the  land  by  one  in  the  belief  that  a  satisfaction 
bj  the  mortgagee  was  valid,  when  in  fact  the  mortgagee  had 
no  right  to  give  a  satisfaction,  having  assigned  the  mort- 
gage, and  in  such  case  the  assignee,  having  failed  to  record 
his  assignment,  can  assert  no  claim  as  against  such  innocent 
purchaser.  ^^^  The  same  principle  applies  in  favor  of  any 
person  who  in  good  faith  deals  with  the  mortgagee  on  the 
assumption  that  he  still  owns  the  mortgage.^®^ 

The  record  of  the  assignment  is  not  constructive  notice  to 
the  mortgagor,  since  the  latter's  interest  antedates  the  as- 
signment, and  consequently  the  mortgagor  may  make  pay- 
ments on  the  mortgage  to  the  mortgagee,  so  long  as  he  is 
without  actual  notice  of  the  assignment.^"" 

As  the  failure  to  record  an  assignment  may,  in  certain 
cases,  postpone  the  assignee,  so  the  recording  of  the  assign- 
ment will  enable  him  to  fully  assert  his  rights  under  the 
mortgage.  Accordingly,  a  purchaser  of  the  premises  or  of 
an  interest  therein,  after  the  recording  of  the  assignment,  is 
charged  with  notice  thereof,  and  is  not  justified  in  paying 
the  mortgage  debt  to  the  assignor. ^^^ 

268  Merrill  v.  Hurley,  6  S.  D.  592,  55  Am.  St.  Rep.  859;  Ladd  v. 
Campbell,  56  Vt.  529;  Fisher  v.  Cowles,  41  Kan.  418;  Swartz's  Ex'rs 
V.  Leist,  13  Ohio  St.  419;  Henderson  v.  Pilgrim,  22  Tex.  464;  Vann 
V.  Marbury,  100  Ala.  438,  46  Am.  St.  Rep.  70. 

269  Parmenter  v.  Oakley,  69  Iowa,  388.  So  the  assignee,  not  hav- 
ing recorded  the  assignment,  cannot  assert  his  rights  as  against 
one  who,  without  notice  of  the  assignment,  redeemed  from  a  sale 
under  a  foreclosure  proceeding  instituted  by  the  mortgagee  after 
making  the  assignment.  Merrill  v.  Luce,  6  S.  D.  354,  55  Am.  St. 
Rep.  844. 

270  Foster  v.  Carson,  159  Pa.  St.  477,  39  Am.  St.  Rep.  696;  Van 
Keuren  v.  Corkins,  66  N.  Y.  77;  Olson  v.  Northwestern  Guaranty 
Loan  Co.,  65  Minn.  475;  Rodgers  v.  Peckham,  120  Cal.  238.  So,  by 
statute,  in  a  number  of  states.     1  Stimson's  Am.  St.  Law,  §  1870. 

271  Brewster  v.  Garner,  103  N.  Y.  556;  Viele  v.  Judson,  82  N.  Y.  32. 

(1233) 
Real  Prop. — 78. 


§   537  REAL  PROPERTY.  [Ch.   35 

An  assignee  of  a  mortgage  is  not  only  usually  required  by 
the  recording  acts  to  record  his  assignment,  but  he  is  also 
entitled  to  the  protection  of  such  acts,  and  consequently  his 
rights  are  superior  to  the  rights  of  persons  claiming  under 
prior  unrecorded  convej-ances,  including  assignments  of  the 
same  mortgage,^ '^^  though  he  takes  subject  to  rights  existing 
under  instruments  which  have  been  duly  recorded.  ^^^ 

When  the  mortgagee  makes  successive  assignments  of  the 
mortgage,  the  assignee  later  in  time  is  usually  charged  with 
notice  of  the  prior  assignment  by  the  fact  that  the  mortgagee 
has  delivered  the  notes  or  other  evidence  of  the  debt  to  the 
prior  assignee,  and  consequently  the  failure  to  record  the 
prior  assignment  is  usually  immaterial, ^^^  But  when  this 
circumstance  does  not  control,  the  assignee  who  first  records 
his  assignment  has  precedence.^ '^'^ 

V.     Payment,  Redemption,  and  Discharge. 

Payment  or  tender  of  the  sum  or  obligation  secured,  if  made 
before  default,  will  usually  revest  the  title  in  the  mortgagor 
or  his  transferee,  free  from  any  claim  by  the  mortgagee,  unless 
the  mortgage  expressly  requires  a  retransfer  of  the  legal  title. 
A  payment  or  tender  after  default  will  also  have  that  effect, 
except  in  some  of  the  states  in  which  the  legal  title  is  in  the 
mortgagee. 

--'■■i  Burns  v.  Berry,  42  Mich.  176;  Pepper's  Appeal,  77  Pa.  St.  373; 
Decker  v.  Boice,  83  N.  Y.  215;  Jackson  v.  Reid,  30  Kan.  10;  Blunt 
V.  Norris,  123  Mass.  55,  25  Am.  Rep.  14.  But  when  the  statute  gives 
one  priority,  as  against  an  earlier  unrecorded  conveyance,  only  if  his 
own  conveyance  is  first  recorded,  an  assignee  of  a  mortgage  must 
first  record  his  assignment  in  order  to  claim  priority.  Westbrook 
V.  Gleason,  79  N.  Y.  23. 

2T?.  Robbins  v.  Larson,  69  Minn.  436,  65  Am.  St.  Rep.  572;  Brower 
V.  Witmeyer,  121  Jnd.  83. 

2T4  Kellogg  V.  Smith,  26  N.  Y.  18;  Porter  v.  King,  1  Fed.  755; 
1  Jones,  Mortgages,  §  483.     And  see  Byles  v.  Tome,  39  Md.  461. 

^75  Purdy  V.  Huntington,  42  N.  Y.  334,  1  Am.  Rep.  532;  Wiley  v. 
Williamson,  68  Ala.  71;  Potter  v.  Stransky,  48  Wis.  235. 

(1234) 


Ch.  35]  MORTGAGES.  jj   537 

Any  person  having  an  estate  in  or  lien  on  the  land  which 
is  subsequent  to  the  mortgage  lien  may  redeem  from  the  mort- 
gage by  paying  the  amount  of  the  obligation  secured  thereby. 
A  person  so  redeeming,  if  not  himself  primarily  liable  for  the 
whole  obligation,  may  compel  those  primarily  liable,  or  jointly 
liable  with  him,  to  exonerate  him,  or  to  contribute  their  proper 
share,  and,  for  the  purpose  of  enforcing  this  right,  he  is  en- 
titled to  be  subrogated  to  the  rights  of  the  mortgagee  as  against 
the  land. 

When  the  mortgage  and  the  mortgaged  land  become  the 
property  of  one  person,  the  mortgage  is  merged  or  extinguished, 
unless  a  contrary  intention  appears,  or  can  be  presumed. 

§  537.     Payment  or  tender  before  default. 

Even  at  common  law,  the  payment  of  the  sum  named  in 
the  mortgage,  or  other  compliance  with  the  terms  of  the  con- 
dition therein,  if  made  at  or  before  the  time  named  there- 
in,^^^  operated  to  terminate  the  estate  of  the  mortgagee,  and 
the  absolute  title  became  revested  in  the  mortgagor,  upon 
entry  by  him,  without  any  reconveyance  or  other  act  on  the 
part  of  the  mortgagee.^'^'^ 

2't;  The  mortgagor  or  other  owner  of  the  land  cannot  insist  on 
paying  off  the  debt  secured  before  the  time  at  which  it  is  due  by 
the  terms  of  the  contract,  except  by  consent  of  the  creditor.  Brown 
V.  Cole,  14  Sim.  427,  9  Jur.  290,  Klrchwey's  Cas.  698;  Weldon  v. 
Tollman,  67  Fed.  986;  Bowen  v.  Julius,  141  Ind.  310;  Moore  v.  Kime, 
43  Neb.  517.  In  case  of  such  payment  by  consent,  the  effect  on  the 
mortgage  lien  is  the  same  as  in  the  case  of  payment  at  maturity. 
Burgaine  v.  Spurling,  Cro.  Car.  283,  Kirchwey's  Cas.  097;  Holman 
V.  Bailey,  3  Mete.  (Mass.)  55,  and  authorities  cited. 

^'"  Litt.  §  334:  Coote,  Mortgages,  4;  4  Kent's  Comm.  193;  Mer- 
rill V.  Chase,  3  Allen  (Mass.)  339;  Grover  v.  Plye,  5  Allen  (Mass.) 
543,  Kirchwey's  Cas.  702;  Perkins'  Lessee  v.  Dibble,  10  Ohio,  433; 
Stewart  v.  Crosby,  50  Me.  130.  Kirchwey's  Cas.  709;  McNair  v. 
Picotte,  33  Mo.  57. 

In  England,  however,  at  the  present  day,  the  mortgage  usually 
provides,  not  that  it  shall  be  void  upon  compliance  with  the  con- 
dition,  but  that   the   mortgagee   shall   make   a   reconveyance,   and 

(1235) 


§   538  REAL  PROPERTY.  [Ch.   35 

In  equity,  and  in  those  states  in  which  the  equitable  theory 
of  mortgages  has  been  adopted,  the  payment  of  the  mortgage 
debt  at  maturity,  by  the  person  whose  duty  it  is  to  pay  it, 
will  extinguish  the  lien.^'^* 

In  order  to  terminate  the  interest  of  the  mortgagee,  a 
legal  and  sufficient  tender  of  payment  before  default  is 
equivalent  to  payment,  and  thereafter,  though  the  mortgagee 
may  have  a  right  to  enforce  a  personal  liability  for  the  debt, 
he  cannot  enforce  any  liability  on  the  part  of  the  land.^^^ 

§  538.     Payment  or  tender  after  default. 

At  common  law,  since,  by  the  breach  of  condition,  an 
absolute  estate  became  vested  in  the  mortgagee,  a  payment 
after  default,  although  accepted  by  the  mortgagee,  could  not 
revest  the  legal  title  in  the  mortgagor,  and  a  reconveyance 
or  release  was  necessary  for  this  purpose.^^*'  This  view  has 
been  accepted  in  some  of  the  states  in  which  the  common- 
law  theory  of  mortgages  is  adopted,^^^  though  not  in  all.^^^ 

consequently  the  legal  title  remains  outstanding  in  the  mortgagee 
until  he  makes  such  reconveyance.  See  Williams,  Real  Property 
(18th  Ed.)   513;  Stewart  v.  Crosby,  50  Me.  130,  Kirchwey's  Cas.  709. 

278  See  post,  §  545. 

279Litt,  §§  335,  338;  Co.  Litt.  209;  Crain  v.  McGoon,  86  111.  431,29 
Am.  Rep.  37;  Lynch  v.  Hancock,  14  S.  C.  66;  Merritt  v.  Lambert,  7 
Paige  (N.  Y.)  344;  Kortright  v.  Cady,  21  N.  Y.  343,  78  Am.  Dec.  145; 
Willard  v.  Harvey,  5  N.  H.  252;  Schearff  v.  Dodge,  33  Ark.  346. 

28oLltt.  §  332;  4  Kent's  Comm.  193.  Reading  on  Mortgages,  by 
Judge  Trowbridge,  8  Mass.  551,  553,  558. 

281  Phelps  V.  Sage,  2  Day  (Conn.)  151;  Doton  v.  Russell,  17  Conn. 
146;  Shields  v.  Lozear,  34  N.  J.  Law,  496,  3  Am.  Rep.  256,  Kirchwey's 
Cas.  728;  Stewart  v.  Crosby,  50  Me.  130,  Kirchwey's  Cas.  709;  Parsons 
V.  Welles,  17  Mass.  419;  Smith  v.  Doe,  26  Miss.  291;  Brobst  v.  Brock, 
10  Wall.   (U.  S.)  519,  536. 

282  Brown  v.  Stewart,  56  Md.  430;  Morgan's  Lessee  v.  Davis,  2 
Har.  &  McH.  (Md.)  9,  17;  Maxwell  v.  Moore,  95  Ala.  166,  36  Am. 
St.  Rep.  190;  Perkins'  Lessee  v.  Dibble,  10  Ohio,  433.  See  4  Kent's 
Comm.  194,  note.  In  some  states,  payment  has,  by  statute,  the  effect 
of  revesting  title  in  the  mortgagee.  See  Griffin  v.  Lovell,  42  Miss. 
402;  Swett  v.  Horn,  1  N.  H.  332;  Hussey  v.  Fisher,  94  Me.  301. 

(1236) 


Ch.   35]  MORTGAGES.  §  538 

In  jurisdictions  where  payment  after  default  is  thus  insuffi- 
cient to  divest  the  mortgagee's  legal  title,  a  mere  tender  of 
payment  after  default  can  have  no  greater  effect  ;^^^  but  even 
in  those  jurisdictions  the  legal  title  cannot,  after  such  pay- 
ment or  tender,  be  utilized  for  the  purpose  of  foreclosing 
the  mortgage  or  depriving  the  mortgagor  of  possession  of  the 
land.284 

In  those  states  which  have  adopted  the  equitable  or  lien 
theory  of  mortgages,  since  the  payment  of  the  debt  after 
default  completely  extinguishes  the  lien,  and  there  is  no  title 
or  estate  in  the  mortgagee,  no  act  on  his  part  is  necessary 
to  free  the  land  from  all  claim  by  him.^^^  A  tender  of  pay- 
ment after  default  is,  in  a  few  of  these  states,  regarded  as 
sufficient  to  divest  the  lien  of  the  mortgage,  even  though  not 
kept  good,  and,  after  a  refusal  of  a  tender  once  made,  the 
mortgagee,  though  he  may  enforce  the  personal  liability  of 
the   mortgagor,    cannot    enforce   the   mortgage   lien.^^*'     In 

283  Phelps  V.  Sage,  2  Day  (Conn.)  151;  Shields  v.  Lozear,  34  N.  J. 
Law,  496,  3  Am.  Rep.  256,  Kirchwey's  Cas.  728;  Rowell  v.  Mitchell, 
68  Me.  21;  Maynard  v.  Hunt,  5  Pick.  (Mass.)  240,  Kirchwey's  Cas. 
706;  Currier  v.  Gale,  9  Allen  (Mass.)  522;  Parker  v.  Beasley,  116 
N.  C.  1. 

284  Stewart  v.  Crosby,  50  Me.  130,  Kirchwey's  Cas.  709 ;  Robinson 
V.  Cross,  22  Conn.  171;  Wade  v.  Howard,  11  Pick.  (Mass.)  289;  Baker 
V.  Gavitt,  128  Mass.  93;  Harrison  v.  Eldridge,  7  N.  J.  Law,  392,  407; 
Shields  v.  Lozear,  34  N.  J.  Law,  496,  3  Am.  Rep.  256,  Kirchwey'  Cas. 
728. 

285  Kortright  v.  Cady,  21  N.  Y.  343,  78  Am.  Dec.  145,  Kirchwey's 
Cas.  713;  Johnson  v.  Sherman,  15  Cal.  287,  76  Am.  Dec.  481;  Potts 
V.  Plaisted,  30  Mich.  149. 

But  in  some  cases  the  mortgage  may  be  kept  alive  in  favor  of  the 
person  making  the  payment,  he  being  "subrogated"  to  the  rights 
of  the  mortgagee  in  order  that  he  may  enforce  "contribution"  or 
"exoneration."     See  post,  §§  544,  545.  * 

286  Kortright  v.  Cady,  21  N.  Y.  343,  78  Am.  Dec.  145,  Kirchwey's 
Cas.  713;  McClung  v.  Missouri  Trust  Co.,  137  Mo.  106;  Caruthers 
v.  Humphrey,  12  Mich.  270;  McClellan  v.  Coffin.  93  Ind.  456;  Sager 
V.  Tupper,  35  Mich.  134;    Eslow  v.  Mitchell,  26  Mich.  500;    Salinas 

(12;]7) 


§   539  REAL  PROPERTY.  [Ch.    35 

others  of  such  states  it  is  necessary  that  the  tender  be  kept 
good  by  the  mortgagor  ;^^'^  and  this  view — that  the  tender 
must  be  kept  good  in  order  to  affect  the  mortgage  security — 
has  been  adopted  in  states  where  the  common-law  theory  of 
mortgages  controls. ^^^ 

The  right  to  pay  the  debt  after  default,  and  to  thereby 
extinguish  the  claim  of  the  mortgagee  against  the  land,  is 
what  we  have  before  referred  to  as  the  right  of  redemp- 
tion,^^^  it  being,  in  the  English  court  of  chancery,  regarded 
as  a  right  to  regain  what  has  been  forfeited  and  lost.  In 
this  country  the  same  term  is  applied  in  states  where  the 
equitable  or  lien  theory  of  mortgages  is  accepted,  as  well  as 
in  those  adopting  the  English  theory ;  but  it  is  plainly  a 
misnomer  in  the  former  class  of  states,  since  the  failure  to 
pay  at  maturity  does  not  in  any  sense  cause  a  forfeiture  of 
the  mortgagor's  rights,  it  merely  giving  the  mortgagee  a 
right  to  foreclose  or  to  recover  on  the  mortgagor's  personal  ob- 
ligation. 

§  539.     Formal  discharge  or  satisfaction. 

Though  it  is  unnecessary,  in  order  to  divest  the  lien  of 
the  mortgage,  that  payment  be  followed  by  a  formal  dis- 
charge, the  mortgagor  or  other  owner  of  the  property  almost 
invariably  requires  such  a  discharge,  in  order  that  the  mort- 

V.  Ellis,  26  S.  C.  337.  See  Moore  v.  Norman,  43  Minn.  428,  19  Am. 
St.  Rep.  247.  But  in  some  of  these  states  it  is  held  that,  if  the 
mortgagor  seeks  affirmative  relief  in  equity,  he  must  keep  his  tender 
good.  Tuthill  V.  Morris,  81  N.  Y.  94,  Kirchwey's  Cas.  736;  Cowles 
V.  Marble,  37  Mich.  158. 

287  perre  v.  Castro,  14  Cal.  519,  76  Am.  Dec.  444;  Himmelman  v. 
Fitzpatrick,  50  Cal.  650;  Matthews  v.  Lindsay,  20  Fla.  973. 

288  Shields  v.  Lozear,  34  N.  J.  Law,  496,  3  Am.  Rep.  256,  Kirch- 
wey's Cas.  728;  Crain  v.  McGoon,  86  111.  431,  29  Am.  Rep.  37;  Parker 
V.  Beasley,  116  N.  C.  1;  Maxwell  v.  Moore,  95  Ala.  166,  36  Am.  St. 
Rep.  190;  Bailey  v.  Metcalf,  6  N.  H.  156. 

289  See  ante,  §  508. 

(1238) 


Ch.  35]  MORTGAGES.  §   540 

gage  may  not  constitute  a  cloud  on  his  title,  aiul  he  may 
usually  compel  it  to  be  given  by  bill  in  equity  or  ccjuivalent 
statutory  proceeding.-^'^  The  discharge  may  be  by  a  formal 
deed  of  release  or  reconveyance;^''^  but  the  statute  usually 
provides  for  an  entry  of  satisfaction  on  the  margin  of  the 
oiBcial  record  in  which  the  mortgage  has  been  enrolled. ^'^^ 
A  penalty  is  frequently  imposed  by  statute  in  case  the  mort- 
gagee, or  the  person  who  has  succeeded  to  his  interest,  refuses 
to  make  such  entry.  ^^^ 

?  540.    Enforcement  of  right  of  redemption. 

The  mortgagee  occasionally  refuses  to  allow  the  mort- 
gagor, or  other  person  entitled  to  redeem,  to  exercise  such 
right,  thereby  subjecting  the  land  to  a  continuance  of  the 
mortgage  lien,  and  perhaps  impairing  the  validity  (tr  vcnidi- 
bility  of  the  title.  In  such  a  case,  and  likewise  when  the 
mortgagee  claims  that  the  conveyance  to  him  was  absolute, 
and  not  by  way  of  mortgage,  or  when  there  is  a  dispute  as 
to  the  amount  due,  the  mortgagor  or  other  person  entitled 
to  redeem  may  proceed  in  equity  to  enforce  the  right  of  re- 
demption, and  may  obtain  a  decree  compelling  the  mort- 
gagee, upon  payment  of  the  debt,  to  release  or  discharge  the 

200  Remington  Paper  Co.  v.  O'Dougherty,  81  N.  Y.  474;  Kingman 
V.  Sinclair,  80  Micli.  427;  Bootli  v.  Hoskins,  75  Cal.  271. 

201  Allen  V.  Leominster  Sav.  Bank,  134  Mass.  580;  Mutual  Build- 
ing &  Loan  Ass'n  v.  Wyeth,  105  Ala.  639;  Hoyt  v.  Swift,  13  Vt.  129, 
37  Am.  Dec.  586. 

202  See  Beal  v.  Stevens,  72  Cal.  451;  Allen  v.  Leominster  Sav. 
Bank,  134  Mass.  580;  Shields  v.  Lozear,  34  N.  J.  Law,  496,  3  Am. 
Rep.  256;  Hoyt  v.  Swift,  13  Vt.  129,  37  Am.  Dec.  586;  1  Jones,  Mort- 
gages,  §§  989-1037. 

203  See  Jarratt  v.  McCabe,  75  Ala.  325;  Judy  v.  Thompson,  156  Ind. 
533;  Kennedy  v.  Moore,  91  Iowa,  39;  Malarkey  v.  O'Leary,  34  Or. 
493;   Crawford  v.  Simon,  159  Pa.  St.  585. 

(1239) 


§   540  REAL  PROPERTY.  [Ch.  35 

mortgage.^^^     The  mortgagor  must,  in  his  bill,  offer  to  pay 
the  amount  due,  including  interest.^^^ 

The  decree,  if  in  favor  of  the  plaintiff,  provides  that  the 
mortgagee  shall  satisfy  or  release  the  mortgage  and  deliver 
up  the  instrument  of  indebtedness  upon  the  payment  by  the 
mortgagor  of  the  amount  due  within  a  time  named.^^^  A 
dismissal  of  the  bill  cuts  off  any  right  of  redemption,  and  is 
thus  equivalent  to  a  decree  of  foreclosure.-^' 

Bar  by  lapse  of  time. 

A  mortgagor  may  be  barred  of  his  right  to  redeem  by  the 
lapse  of  time ;  equity  usually  adopting  for  this  purpose  the 
period  of  limitation  applicable  to  suits  for  the  recovery  of 
land,  after  which  time  the  equity  of  redemjDtion  is  presumed 
to  be  extinguished.-'"^'*  But  in  order  that  the  mortgagor's 
rights  may  be  thus  extinguished  by  lapse  of  time,  it  is  neces- 
sary that  the  mortgagee  be  in  possession,  and  that  this  pos- 
session be  adverse  to  the  mortgagor.-'''^ 

291  3  Pomeroy,  Eq.  Jur.  §  1219;  2  Jones,  Mortgages,  §  1093. 

295  Adams  v.  Sayre,  70  Ala.  318;  Way  v.  Mullett,  143  Mass.  49; 
Eastman  v.  Thayer,  tiO  N.  H.  408;  Berkman  v.  Frost,  18  Johns.  (N. 
Y.)  544,  9  Am.  Dec.  246. 

29U  See  2  Jones,  Mortgages,  §  1106;  Bremer  v.  Calumet  &  Chi- 
cago Canal  &  Dock  Co.,  127  111.  464;  Dennett  v.  Codman,  158  Mass. 
371;  McKenna  v.  Kirkwood,  50  Mich.  544;  Ferine  v.  Dunn,  4  Johns. 
Ch.  (N.  Y.)  140;  Martin  v.  RatclifE,  101  Mo.  254. 

297  Winchester  v.  Paine,  11  Ves.  194,  199 ;  Casseriy  v.  Wltherbee, 
119  N.  Y.  522;   Flanders  v.  Hall,  159  Mass.  95. 

298  Hughes  V.  Edwards,  9  Wheat.  (U.  S. )  489;  Slicer  v.  Pittsburg 
Bank,  16  How.  (U.  S.)  571;  Demarest  v.  Wynkoop,  3  Johns.  Ch. 
(N.  Y.)  135,  8  Am.  Dec.  467,  Finch's  Cas.  1047;  Jarvis  v.  Woodruff,  22 
Conn.  548;  Morgan  v.  Morgan,  10  Ga.  297;  Dexter  v.  Arnold,  1  Sumn. 
109,  Fed.  Cas.  No.  3,857;  Roberts  v.  Littlefield,  48  Me.  61;  McNair  v. 
Lot,  34  Mo.  285,  84  Am.  Dec.  78;  Robinson  v.  Fife,  3  Ohio  St.  551. 

299  Green  v.  Turner,  38  Iowa,  112;  Rogers  v.  Benton,  39  Minn.  39, 
12  Am.  St.  Rep.  613;  Bird  v.  Keller,  77  Me.  270;  Anding  v.  Davis, 
38  Miss.  574,  77  Am.  Dec.  658;  Hubbell  v.  Sibley,  50  N.  Y.  468;  Sim- 
mons V.  Ballard,  102  N.  C.  105;  Knowlton  v.  Walker,  13  Wis.  264; 
Frink  v.  Le  Roy,  49  Cal.  314. 

(1240) 


Ch.   35]  MORTGAGES.  §  541 

§  541.     Persons  entitled  to  redeem. 

Any  persons  who  are  interested  in  the  mortgaged  land,  or 
have  a  legal  or  equitable  lien  thereon,  and  are  in  privity 
with  and  claim  under  the  mortgagor,  may  redeem  from  the 
mortgage."*''^  Accordingly,  the  right  may  be  exercised  by 
a  purchaser  of  the  whole  or  a  part  of  the  mortgaged  premises 
from  the  mortgagor,  or  from  one  claiming  under  the  mort- 
gagor,^''^ by  a  subsequent  mortgagee  or  holder  of  a  judgment 
lien,^*'"  an  heir  or  devisee  of  the  OAvner  of  the  land,^'''^  or  by 
one  entitled  to  dower  or  curtesy  therein.^*'^  A  person,  how- 
ever, Avho  is  not  affected  by  the  mortgage,  and  whose  rights 
are  prior  thereto,  or  who  has  no  interest  whatever  in  the 
land,  cannot  redeem.^*'^ 

300  4  Kent's  Comm.  162;  Sellwood  v.  Gray,  11  Or.  534;  Piatt  v. 
Squire,  12  Mete.  (Mass.)  494;  Grant  v.  Duane,  9  Johns.  (N,  Y.)  611; 
Powers  V.  Golden  Lumber  Co.,  43  Mich.  468;  Rapier  v.  Gulf  City 
Paper  Co.,  64  Ala.  330;  Smith  v.  Austin,  9  Mich.  475. 

301  Scott  V.  Henry,  13  Ark.  112;  Dunlap  v.  Wilson,  32  111.  517; 
Wood  V.  Goodwin,  49  Me.  260,  77  Am.  Dec.  259;  Stark  v.  Brown, 
12  Wis.  572,  78  Am.  Dec.  762. 

302  stonehewer  v  Thompson,  2  Atk.  440;  Frink  v.  Murphy,  21  Cal. 
108,  81  Am.  Dec.  149;  Sager  v.  Tupper,  35  Mich.  134;  Rogers  v.  Her- 
ron,  92  111.  583;  Knowles  v.  Rablin,  20  Iowa,  101;  Mclntier  v.  Shaw, 
6  Allen  (Mass.)  83;  Loomis  v.  Knox,  60  Conn.  343;  Todd  v.  John- 
son, 56  Minn.  60. 

303  Chew  V.  Hyman,  10  Biss.  240,  7  Fed.  7;  Ziegel  v.  Kuster,  51  Wis. 
31;  Hunter  v.  Dennis,  112  111.  568;  Lewis  v.  Nangle,  2  Ves.  Sr.  431. 

304  Gibson  v.  Crehore,  5  Pick.  (Mass.)  146,  Kirchwey's  Cas.  698; 
Davis  V.  Wetherell,  13  Allen  (Mass.)  60,  90  Am.  Dec.  177;  Mills  v. 
Van  Voorhies,  20  N.  Y.  412;  Gatewood  v.  Gatewood,  75  Va.  407; 
Vaughan  v.  Dowden,  126  Ind.  406;  McArthur  v.  Franklin,  16  Ohio 
St.  193;  Rossiter  v.  Cossit,  15  N.  H.  38. 

305Lomax  v.  Bird,  1  Vern,  182;  Rapier  v.  Gulf  City  Paper  Co.,  64 
Ala.  332;  Byington  v.  Buckwalter,  7  Iowa,  512,  74  Am.  Dec.  279; 
Grant  v.  Duane,  9  Johns.  (N.  Y.)  591;  Sinclair  v.  Learned,  51  Mich. 
335;  2  Jones,  Mortgages,  §  1055. 

(1241) 


§   543  REAL  PROPERTY.  [Ch.   35 

§  542.     Amount  necessary  for  redemption. 

In  order  to  redeem  from  a  mortgage,  it  is  necessary  to  pay 
the  entire  mortgage  debt,  if  due,  or  so  much  thereof  as  may 
be  due,  together  with  interest  to  the  time  of  redemption.^"'^ 
Though  a  jDerson  has  an  undivided  interest  only  in  the 
mortgaged  jDremises,  or  owns  a  part  only  in  severalty,  he 
must,  as  a  general  rule,  offer  to  pay  the  entire  mortgage  debt, 
since  the  mortgagee  is  entitled  to  retain  his  lien  on  every  part 
of  the  land  until  his  debt  is  entirely  paid.'^"'  And,  accord- 
ingly, a  widow,  entitled  to  dower,  who  desires  to  redeem, 
must  pay  the  whole  amount  of  the  debt,  and  not  merely  one- 
third  thereof.^'^* 

§  543.     Tacking  and  consolidation. 

By  the  doctrine  of  '^'tacking,"  which  has  long  prevailed 
in  England,  a  mortgagee,  having  the  legal  estate,  may,  upon 

306  4  Kent's  Comm.  163;  Cowles  v.  Marble,  37  Mich.  158;  Childs 
V.  Childs,  10  Ohio  St.  339,  75  Am.  Dec.  512;  Smith  v.  Kelley,  27  Me. 
237,  46  Am.  Dec.  595;  Meacham  v.  Steele,  93  111.  135;  Merritt  v.  Hos- 
mer,  11  Gray  (Mass.)  276,  71  Am.  Dec.  713. 

This  is  so  even,  when  a  sale  under  the  mortgage  has  taken  place, 
and  the  property  was  sold  for  less  than  the  amount  of  the  mort- 
gage. Collins  v.  Riggs,  14  Wall.  (U.  S.)  491;  Bradley  v.  Snyder,  14 
111.  263,  58  Am.  Dec.  564;  Martin  v.  Fridley,  23  Minn.  13. 

307  Titley  v.  Davis,  2  Eq.  Cas.  Abr.  604,  Kirchwey's  Cas.  697:  Palk 
v.  Clinton,  12  Ves.  59;  Gibson  v.  Crehore,  5  Pick.  (Mass.)  146, 
Kirchwey's  Cas.  698;  Street  v.  Beal,  16  Iowa,  68,  85  Am.  Dec.  504; 
Meacham  v.  Steele,  93  111.  135;  Merritt  v.  Hosmer,  11  Gray  (Mass.) 
276,  71  Am.  Dec.  713;  Smith  v.  Kelley,  27  Me.  237,  46  Am.  Dec.  595; 
Bell  V.  City  of  New  York,  10  Paige  (N.  Y.)  49;  Coffin  v.  Parker,  127 
N.  Y.  117;  Andreas  v.  Hubbard,  50  Conn.  351;  Franklin  v.  Gorham, 
2  Day  (Conn.)  1421,  2  Am.  Dec.  86. 

One  may,  however,  redeem  part  of  the  land  by  payment  of  part 
of  the  debt  if  the  holder  of  the  mortgage  assents  thereto.  Union 
Mut.  Life  Ins.  Co.  v.  Kirchoff,  133  111.  368;  Kerse  v.  Miller,  169  Mass. 
44. 

308  McCabe  v.  Bellows,  7  Gray  (Mass.)  148,  66  Am.  Dec.  467;  Mer- 
selis  v.  Van  Riper,  55  N.  J.  Eq.  618. 

(1242) 


Ch.  35]  MORTGAGES.  i^  543 

making  a  further  advance  or  acquiring  a  further  charge  on 
the  same  hind,  tack  or  add  the  further  charge  to  his  original 
debt,  and  hold  the  legal  estate  as  against  intermediate  in- 
cumbrancers until  he  is  satisfied  in  full ;  and,  by  an  exten- 
sion of  the  same  doctrine,  a  third  mortgagee,  who  has  ad- 
vanced his  money  without  notice  of  a  second  mortgage  or 
charge,  may,  on  taking  an  assignment  of  the  first  mortgage, 
and  thus  acquiring  the  legal  title,  "tack"  it  to  the  third  mort- 
gage, and  "squeeze  out"  the  intervening  mortgage  or  charge. 
The  doctrine  is  based  on  the  theory  that  the  equities  of  the 
second  and  third  incumbrancers  are  equal,  and  that  therefore 
the  legal  title  will  prevail.^**^  The  third  mortgagee  must, 
however,  be  without  notice  of  the  second  mortgage  or  incum- 
brance at  the  time  of  making  the  advance,  and  it  results  from 
this  requirement  that  in  the  United  States,  where  construc- 
tive knowledge  of  the  second  incumbrance  is  given  to  the 
third  incumbrancer  by  the  record,  there  is  no  room  for  the 
application  of  the  principle  ;^^^  and  even  apart  from  the 
question  of  notice,  it  could  have  no  application  in  states  in 
which  a  mortgage  does  not  convey  a  legal  title. 

The  doctrine  of  "consolidation,"  as  applied  to  mortgages 
in  England,  consists  in  the  right  of  the  holder  of  two  mort- 
gages on  different  pieces  of  land,  wliich  belong  to  the  same 
person,  to  retain  each  mortgage  as  a  subsisting  lien  on  the 
land  until  the  debts  secured  by  both  the  mortgages  are 
paid.^^^      The  equity  of  the  doctrine,  especially  against  in- 

309  Marsh  v.  Lee,  2  Vent.  337,  1  White  &  T.  Lead.  Cas.  Eq.  837, 
notes;    Brace  v.  Marlborough,  2   P.  Wms.  491;    1  Leake,   507,  509; 

2  Robbins,  Mortgages,  1219. 

310  Grant  v.  Bissett,  1  Caines  Cas.  (N.  Y.)  112;  Osborn  v.  Carr, 
12  Conn.  208;  Averill  v.  Guthrie,  8  Dana  (Ky.)  84;  Loring  v.  Cooke, 

3  Pick.  (Mass.)  48;  Brazee  v.  Lancaster  Bank,  14  Ohio,  321;  An- 
derson V.  Neff,  11  Serg.  &  R.  (Pa.)  223;  Siter  v.  McClanachan,  2 
Grat.  (Va.)  280;  4  Kent's  Comm.  178;  Marsh  v.  Lee,  1  White  &  T. 
Lead.  Cas.  Eq.  853. 

3112  Robbins,  Mortgages,  855;  Williams,  Real  Prop.  441;  1  Leake, 
513;  4  Kent's  Coram.  179,  note  1(d)  B. 

(1243) 


§  543  nEAh  PROPERTY.  [Ch.  35 

nocent  purchasers,  has  been  frequently  questioned,  and  by 
a  modern  enactment  it  applies  to  mortgages  only  when  an 
intention  that  it  shall  apply  is  apparent/^ ^^  It  has  never 
been  adopted  in  this  country. 


313 


Tacking  unsecured  claims. 


Applying  the  maxim  that  he  who  seeks  equity  must  do 
equity,  it  has  been  held  in  some  states  that  the  mortgagor 
cannot  obtain  a  decree  for  redemption  unless  he  pays  not 
only  the  mortgage  debt  and  interest,  but  also  all  other  debts 
due  by  him  to  the  mortgagee.^^"*  In  other  states,  however, 
as  in  England,  it  is  held  that  the  mortgagee  cannot  thus 
charge  collateral  debts   against  the  mortgaged  property.^^^ 

312  Conveyancing  and  Law  of  Property  Act  1881,  §  17. 

313  See  2  Jones,  Mortgages,  §  1083. 

314  Scripture  v.  Jolinson,  3  Comm.  211;  Lee  v.  Stone,  5  Gill  &  J. 
(Md.)  1;  Lake  v.  Shumate,  20  S.  C.  23;  Anthony  v.  Anthony,  23  Ark. 
479  (but  see  Cohn  v.  Hoffman,  56  Ark.  119);  Brown  v.  Gaffney, 
32  III.  251;  Chase  v.  McDonald,  7  Har.  &  J.  (Md.)  161,  196;  Lee  v. 
Stone,  5  Gill  &  J.  (Md.)  1;  Downing  v.  Palmateer,  1  T.  B.  Mon. 
(Ky.)  64,  70;  Siter  v.  McClanachan,  2  Grat.  (Va.)  280,  299;  Walling 
V.  Aiken,  1  McMul.  Eq.  (S.  C.)  2,  10;  Leeds  v.  Gifford,  41  N.  J.  Eq. 
464. 

315  Challis  V.  Casborn,  Finch,  Prec.  Ch.  407,  Kirchwey's  Cas.  500; 
Coleman  v.  Winch,  1  P.  Wms.  775,  Kirchwey's  Cas.  501;  Jones  v. 
Smith,  2  Ves.  Jr.  372,  376;  Mahoney  v.  Bostwick,  96  Cal.  53;  Brooks 
V.  Brooks,  169  Mass.  38;  Corporation  for  Relief  of  Poor  Distressed 
Presybterian  Ministers  v.  Wallace,  3  Rawle  (Pa.)  109,  155. 

In  Massachusetts,  however,  the  mortgagee  has  this  right  if  there 
was  an  oral  agreement  that  the  mortgage  should  be  security  for 
such  debts.  Joslyn  v.  Wyman,  5  Allen  (Mass.)  62;  Taft  v.  Stoddard, 
142  Mass.  545. 

Even  in  England  it  is  held  that  an  heir  or  devisee  seeking  to  re- 
deem must  pay,  in  addition  to  the  mortgage  debt,  a  debt  of  the  de- 
ceased which  is  payable  out  of  the  land  as  being  assets  in  the  hands 
of  such  heir  or  devisee,  this  being  stated  to  be  for  the  purpose  of 
avoiding  circuity  of  action.  Coleman  v.  Winch,  1  P.  Wms.  777, 
Kirchwey's  Cas.  501;  Rolfe  v.  Chester,  20  Beav.  610;  Elvy  v.  Nor- 
wood, 21  Law  J.  Ch.  716.  But  this  rule  is  not  there  applied  to  the 
detriment    of    other    creditors    of    equal    degree,    or    incumbrancers 

(1244) 


Ch.  35]  MORTGAGES.  §  544 

The  right  to  thus  tack  coUateral  debts  for  the  purpose  of  fore- 
closure, as  distinct  from  redemption,  has  never  been  recog- 
nized.^^ ^ 

§  544.     Exoneration  and  contribution. 

In  the  absence  of  a  statutory  provision  to  the  contrary,  or 
a  different  intention  apparent  from  the  will,  the  heir  or 
devisee  may  require  the  executor  or  administrator  to  pay  off 
a  mortgage  on  the  land  securing  a  debt  for  which  the  de- 
ceased was  personally  liable,  the  theory  being  that  it  was 
the  personal  estate  which  received  the  benefit  from  the  crea- 
tion of  the  debt,  and  that  it  therefore  should  pay  it.^^"^  This 
rule  is  now  changed  in  England  by  statute.^^^  In  a  num- 
ber of  states  in  this  country,  likewise,  the  matter  is  covered 
by.  statutory  provisions  of  varying  character,  prescribing  the 
order  of  payment  of  a  decedent's  debts,  and  determining  the 
order  of  liability  of  the  different  classes  of  property  and 
rights  of  contribution  between  them.^^^ 

The  common-law  rule  never  applied  to  cases  in  which  the 
mortgage  debt  was  neither  created  by  the  deceased  nor  in 
some  way  made  by  him  his  own  debt  f^^  and  the  right  does 

whose  rights  have  accrued  between  the  time  of  the  mortgage  and 
the  creation  of  the  debt.  Powis  v.  Corbet,  3  Atk.  556,  Kirchwey's 
Gas.  502;  1  Story,  Eq.  Jur.  §§  418,  419;  Hamerton  v.  Rogers,  1  Ves. 
Jr.  513,  and  Sumner's  note. 

316  Lee  V.  Stone,  5  Gill  &  J.  (Md.)  1,  Kirchwey's  Cas.  504;  Anthony 
V.  Anthony,  23  Arlx.  479;  Tunno  v.  Robert,  16  Fla.  738. 

317  Lutkins  v.  Leigh,  Cas.  t.  Talb.  54;  Ancaster  v.  Mayer,  1  Brown 
Ch.  454,  1  White  &  T.  Lead.  Cas.  Eq.  881,  notes;  Cumberland  v. 
Codrington,  3  Johns.  Ch.  (N.  Y.)  229,  8  Am.  Dec.  492;  Sutherland 
V.  Harrison,  86  111.  363;  Brown  v.  Baron,  162  Mass.  56,  44  Am.  St. 
Rep.  331;  Hoff's  Appeal,  24  Pa.  St.  200,  4  Gray's  Cas.  832;  Gould 
V.  Winthrop,  5  R.  I.  319;  2  Woerner,  Administration,  §  494;  9  Am. 
&  Eng.  Enc.  Law  (2d  Ed.)  1317  et  seq. 

318  17  &  18  Vict.  c.  113  (Locke  King's  Act,  A.  D.  1854). 

319  See  11  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  1063;  19  Am.  &  Eng. 
Enc.  Law  (2d  Ed.)  1333;  2  Woerner,  Administration,  §  497. 

320  2  Williams,  Executors    (9th  Ed.)  1565  et  seq.;  Evelyn  v.  Evelyn, 

(1245) 


§   545  REAL  PROPERTY.  [Ch.  35 

not  exist  in  favor  of  the  heir  or  devisee  as  against  a  legatee, 
other  than  the  residuary  legatee.^^^ 

The  equitable  doctrine  of  contribution  is  applied,  as  before 
indicated,  in  favor  of  a  person  interested  in  the  land  who 
pays  the  v^hole  mortgage  debt,  when  he  should  properly,  as 
against  others  interested  in  the  land,  pay  a  part  only;  and 
in  case  he  pays  off  a  debt  which  should  be  entirely  satisfied 
by  another  person  interested  in  the  land,  he  is  entitled  to 
complete  "exoneration," — that  is,  to  recover  the  whole 
amount  paid  from  the  person  primarily  liable.  This  right 
to  contribution  or  exoneration  is  usually  enforced  by  means 
of  the  doctrine  of  subrogation,  discussed  in  the  next  section. 

§  545.     Subrogation  of  person  redeeming. 

In  the  law  of  mortgages  there  is  frequent  occasion  for  the 
application  of  the  equitable  doctrine  of  subrogation,  by  which 
one  who,  in  order  to  protect  his  interests,  is  compelled  to  pay 
a  debt  for  which  he  is  not  primarily  liable,  is  entitled  to 
stand  in  the  place  of  the  original  creditor,  with  all  the  rights 
belonging  to  the  latter,  including  particularly  the  right  to 
enforce  any  securities  which  the  latter  may  have  held  for  the 
payment  of  the  debt.  This  right  is  sometimes  given  the 
name  of  "equitable  assignment,"  as  being  in  effect  an  assign- 
ment, implied  by  equity,  to  the  person  making  the  payment, 
and,  since  an  assignment  is  thus  implied,  it  is  usually  imma- 

2  P.  Wms.  659;  Scott  v.  Beecher,  5  Madd.  96;  Hoff's  Appeal,  24  Pa. 
St.  200;  Cumberland  v.  Codrington,  3  Johns.  Ch.  (N.  Y.)  229,  8  Am. 
Dec.  492;  Creesy  v.  Willis,  159  Mass.  249;  Minter  v.  Burnett,  90 
Tex.  245. 

3212  Williams,  Executors,  1564;  Hamilton  v.  Worley,  2  Ves.  Jr. 
65;  HofE's  Appeal,  24  Pa.  St.  206;  Thomas  v.  Thomas.  17  N.  J.  Eq. 
356;  Mollan  v.  Griffith,  3  Paige  (N.  Y.)  402.  In  Massachusetts  the 
devisee  or  heir  is  exonerated  as  against  a  general  legatee.  Hewes 
V.  Dehon,  3  Gray  (Mass.)  205;  Plimpton  v.  Fuller,  11  Allen  (Mass.) 
139;   Brown  v.  Baron.  162  Mass.  56. 

(1246) 


Ch.  35]  MORTGAGES.  §   545 

terial  whether  he  takes  an  actual  assignment  of  the  rights 
and  securities  of  the  original  creditor. 

The  doctrine  is  applied  for  the  benefit  of  a  surety,  who, 
upon  paying  his  principal's  debt,  thereby  becomes  entitled 
to  stand  in  the  place  of  the  creditor,  in  order  to  obtain  in- 
demnity ;  and,  accordingly,  when  the  debt  is  secured  by  mort- 
gage, the  surety  is,  on  paying  it,  entitled  to  the  benefit  of 
such  mortgage,  being  in  equity  regarded  as  the  assignee 
thereof.^^^  Likewise,  a  person  who,  as  having  an  interest 
in  the  property  subsequent  to  the  mortgage,  is  obliged  to 
redeem  from  the  mortgage  in  order  to  protect  his  interest, 
may  be  subrogated  to  the  right  of  the  mortgagee  to  enforce 
the  mortgage,  in  order  to  compel  contribution  by  the  other 
persons  interested  in  the  property.^ ^^ 

As  a  general  rule,  any  person  who  is  entitled  to  redeem, 
as  having  an  interest  in  the  land,  is  entitled  to  be  subrogated 
on  making  such  redemption,  provided  he  be  not  primarily 
and  solely  liable  for  the  mortgage  debt.  The  right  exists  in 
favor  of  the  mortgagor  if,  by  reason  of  his  grantee's  assump- 
tion of  the  mortgage  debt,  he  has  himself  ceased  to  be  pri- 
marily liable  therefor  ;^^^  and  this  is  so  even  when  the  gran- 

322  Taylor  v.  Tarr,  84  Mo.  420;  Matthews  v.  Fidelity  Title  &  Trust 
Co.  (C.  C.)  52  Fed.  687;  Conner  v.  Howe,  35  Minn.  518;  Ellsworth 
V.  Lockwood,  42  N.  Y.  89;  Telford  v.  Garrels,  132  111.  550;  Jones  v. 
Tineher,  15  Ind.  308,  77  Am.  Dec.  92. 

323  Muir  V.  Berkshire,  52  Ind.  149;  Mosier's  Appeal,  56  Fa.  St.  76, 
93  Am.  Dec.  783;  Saunders  v.  Frost,  5  Pick.  (Mass.)  259,  16  Am. 
Dec.  394;  Arnold  v.  Green,  116  N.  Y.  566,  Finch's  Cas.  1115;  Gatewood 
V.  Gatewood,  75  Va.  407;  Champlin  v.  Williams,  9  Pa.  St.  341;  Young 
V.  Morgan,  89  111.  199;  Swain  v.  Stockton  Sav.  &  Loan  Soc,  78  Cal. 
600,  12  Am.  St.  Rep.  118. 

The  right  to  subrogation  exists  even  though  the  mortgage  is  dis- 
charged upon  the  record.  Arnold  v.  Green,  116  N.  Y.  566;  Cobb  v. 
Dyer,  69  Me.  494;  Tyrrell  v.  Ward,  102  111.  29;  Johnson  v.  Barrett, 
117  Ind.  551,  10  Am.  St.  Rep.  83;  Hammond  v.  Barker,  61  N.  H.  53. 

324Begein  v.  Brehm,  123  Ind.  160;  Stillman's  Ex'rs  v.  Stillman,  21 
N.  J.  Eq.  126;  Flagg  v.  Geltmacher,  98  111.  293;  Risk  v.  Hoffman,  69 

(1247) 


§   545  REAL  PROPERTY.  [Ch.  35 

tee  does  not  assume  the  mortgage,  but,  the  conveyance  being 
stated  to  be  subject  to  the  mortgage,  the  mortgaged  land  be- 
comes primarily  liable  for  the  debt.^^^  It  also  exists  in 
favor  of  a  junior  mortgagee,^ ^^  and  of  one  who  purchases  the 
mortgaged  land  without  assuming  its  payment,  and  without 
any  express  statement  that  the  land  is  subject  to  the  mort- 
gage.^^^ 

The  right  of  subrogation  also  exists  in  favor  of  one  who, 
though  not  personally  liable,  and  without  any  interest  in  the 
land  to  protect,  pays  off  the  mortgage  at  the  request  and  for 
the  benefit  of  the  person  primarily  liable,  with  an  express 
or  implied  agreement  that  he  shall  have  the  benefit  of  the 
existing  mortgage,  or  of  a  new  one  to  be  given.^^^  So,  one 
who  loans  money  to  the  owner  of  the  land  in  order  to  pay 
off  the  mortgage,  and  takes  another  mortgage  in  order  to 
secure  him,  is  entitled  to  the  benefit  of  the  prior  mortgage  if 
the  new  mortgage  turns  out  to  be  defective,  and  there  are  no 
intervening  incumbrances.^^^ 

Ind.  137;  Kinnear  v.  Lowell,  34  Me.  299;  Ayers  v.  Dixon,  78  N.  Y. 
318. 

325  Greenwell  v.  Heritage,  71  Mo.  459;  Jumel  v.  Jumel,  7  Paige, 
N.  Y.  591;  Johnson  v.  Zink,  51  N.  Y.  333,  Finch's  Cas.  1111;  Gerdine 
V.  Menage,  41  Minn.  417;  Kinnear  v.  Lowell,  34  Me.  299. 

326  Worcester  Nat.  Bank  v.  Cheeney,  87  111.  602;  Ketchum  v.  Crip- 
pen,  37  Cal.  223;  Ellsworth  v.  Lockwood,  42  N.  Y.  89,  96;  Ward  v. 
Seymour,  51  Vt.  320;  Weld  v.  Sabin,  20  N.  H.  533,  51  Am.  Dec.  240; 
Erwin  v.  Acker,  126  Ind.  133;  Milligan's  Appeal,  104  Pa.  St.  503; 
Cobb  V.  Dyer,  69  Me.  494. 

327  Watson  V.  Gardner,  119  111.  312;  Walker  v.  King,  45  Vt.  525; 
Braden  v.  Graves,  85  Ind.  92;  Gleason  v.  Dyke,  22  Pick.  (Mass.) 
390. 

328Gans  V.  Thieme,  93  N.  Y.  225;  Robertson  v.  Mowell,  66  Md. 
530;  Borland  v.  Meurer,  139  Pa.  St.  513;  Pears  v.  Albea,  69  Tex.  437, 
5  Am.  St.  Rep.  78;  Lockwood  v.  Marsh,  3  Nev.  138;  Tolman  v.  Smith, 
85  Cal.  280. 

329  Johnson  v.  Barrett,  117  Ind.  551,  10  Am.  St.  Rep.  83;  Milhol- 
land  V.  Tiffany,  64  Md.  455;  Patterson  v.  Birdsall,  64  N.  Y.  294,  21 
Am.  Rep.  609;  Carr  v.  Caldwell,  10  Cal.  380,  70  Am.  Dec.  740;  Crip- 
(1248) 


Ch.  35]  MORTGAGES.  g  54(, 

When  land  is  sold  under  a  foreclosure  sale  which  turns 
out  to  be  invalid,  the  purchaser  who  has  paid  the  price  is  sub- 
rogated to  the  rights  of  the  holder  of  the  mortgage  under 
which  the  sale  took  place.^^^ 

A  payment  of  part  only  of  the  debt  gives  no  right  of  sub- 
rogation, in  the  absence  of  express  agreement  therefor  at  the 
time  of  payment,  or  unless  the  balance  of  the  debt  has  been 
previously  paid,  but  the  person  so  paying  may  take  an  assign- 
ment of  jDart  of  the  mortgage  to  secure  him.^^^ 

The  right  does  not  exist  in  favor  of  a  mere  stranger  who 
voluntarily  pays  off  the  mortgage,  but  by  such  payment  the 
mortgage  is  extinguished.^^'  JSTor  does  it  exist  in  favor  of 
one  who  is  primarily  bound  to  pay  the  debt,  whether  he  be 
the  original  mortgagor  or  a  grantee  of  the  property  who  has 
assumed  payment  of  the  mortgage.^^^ 

?;    546.    Marshaling  of  securities. 

When  one  holds  a  mortgage  on  two  tracts  of  land,  and  a 
second  mortgage  or  other  lien  in  the  hands  of  another  person 
covers  but  one  of  these  tracts,  the  prior  mortgagee  may  be 

pen  V.  Chappel,  35  Kan.  495,  57  Am.  Rep.  187;  Wilton  v.  Mayberry, 
75  Wis.  191,  17  Am.  St.  Rep.  193. 

330  Wilson  V.  Brown,  82  Ind.  471;  Martin  v.  Kelly,  59  Miss.  652; 
Crosby  v.  Farmers'  Bank  of  Andrew  County,  107  Mo.  436;  Johnson 
V.  Robertson,  34  Md.  165;  Jones  v.  McKenna,  4  Lea  (Tenn.)  630; 
Brobst  V.  Brock,  10  Wall.  (U.  S.)   519. 

331  Commonwealth  of  Virginia  v.  State,  32  Md.  501,  545;  Troxell 
V.  Silverthorn,  45  N.  J.  Eq.  330;  Kyner  v.  Kyner,  6  Watts  (Pa.)  221; 
Sheldon,  Subrogation,  §  127. 

332  Guy  V.  De  Uprey,  16  Cal.  195.  76  Am.  Dec.  518;  Van  Winkle 
V.  Williams,  38  N.  J.  Eq.  105;  Arnold  v.  Green,  116  N.  Y.  566;  Rod- 
man V.  Sanders,  44  Ark.  504;  Sheldon,  Subrogation,  §  241. 

333  Birke  v.  Abbott,  103  Ind.  1,  53  Am.  Rep.  474;  Goodyear  v.  Good- 
year, 72  Iowa,  329;  Willson  v.  Burton,  52  Vt.  394;  Russell  v.  Pistor, 
7  N.  Y.  171,  57  Am.  Dec.  509;  McCabe  v.  Swap,  14  Allen  (Mass.)  188; 
Butler  V.  Seward,  10  Allen  (Mass.)  466;  Probstfied  v.  Czizek,  37 
Minn.  420. 

(1249) 
Real  Prop. — 79. 


§   547  REAL  PROPERTY.  [Ch.    35 

compelled  to  resort  first  to  the  parcel  not  covered  by  the  in- 
ferior lien,  in  order  to  leave  the  other,  so  far  as  possible,  to 
the  second  lienor,  and  the  latter  is,  in  case  the  prior  mort- 
gagee does  proceed  against  such  other  laud  in  the  first  place, 
entitled  to  be  subrogated  to  .the  rights  of  the  prior  mortgagee 
against  the  land  covered  by  tjie  first  mortgage  only,  this 
being  an  application  of  the  general  equitable  principle  that 
one  having  two  funds  to  satisfy  his  demands  shall  not,  by  his 
election,  disappoint  a  person  who  has  only  one  fund.^^^  The 
principle  will  not  be  applied,  however,  if  it  will  in  any  way 
prejudice  the  first  mortgagee,  the  mortgagor,  or  third  per- 
sons.^^° 

§  547.     Merger  of  mortgage. 

The  principle  that,  if  the  owner  of  the  legal  estate  in  the 
land  becomes  also  the  o^vner  of  a  charge  or  lien  thereon,  the 
latter  will  be  merged  or  extinguished,  is  frequently  applied 
in  the  case  of  mortgages.  Equity,  however,  applies  the  prin- 
ciple only  when  it  accords  with  the  actual  or  presumed  in- 
tention of  the  parties. ^^^  This  intention  may  be  expressly 
stated  in  the  conveyance  of  the  land  or  the  assignment  of  the 
incumbrance  which  brings  the  two  interests  together,  or  may 
be  made  apparent  by  the  acts  of  the  parties  or  the  character 
of  the  conveyance,  or  the  circumstances  imdcr  which  the  con- 
veyance is  made.^^^     When  there  is,   as  is  frequently  the 

334  3  pomeroy.  Eq.  Jur.  S  1414;  Aldrich  v.  Cooper,  2  White  &  T. 
Lead.  Cas.  Eq.  228,  notes;  Hannah  v.  Carrington,  18  Ark.  85;  An- 
dreas V.  Hubbard,  50  Conn.  351;  White  v.  Polleys,  20  Wis.  505;  Ab- 
bott V.  Powell,  6  Sawy.  91,  Fed.  Cas.  No.  13;  Cheesebrough  v.  Mil- 
lard, 1  Johns.  Ch.  (N.  Y.)  409,  7  Am.  Dec.  494;  Brooks  v.  Maltledge, 
100  Ga.  3G7;  Ball  v.  Setzer,  33  W.  Va.  444. 

335Hudkins  v.  Ward,  30  W.  Va.  204,  8  Am.  St.  Rep.  22;  Boone  v. 
Clark,  129  111.  466;  McGinnis'  Appeal,  16  Pa.  St.  445;  Detroit  Sav. 
Bank  v.  Truesdail,  38  Mich.  430;  3  Pomeroy,  Eq.  Jur.  §  1414. 

336  2  Pomeroy,  Eq.  Jur.  §§789-795. 

337  See  Longfellow  v.  Barnard.  58  Neb.  612,  76  Am.  St.  Rep.  117: 

(1250) 


Ch.  35j  MORTGAGES.  i^  547 

case,  nothiug  to  show  the  intention,  in  such  a  case  equity 
will  usually  presume  that  the  owner  of  the  two  interests  in- 
tended that  they  should  merge,  or  the  contrary,  according 
as  merger  would  be  most  for  his  benefit.^^^  Tn  case  there  is 
an  incumbrance  or  equity  intervening  between  the  mortgage 
and  the  estate  of  the  owner  of  the  propert^y,  as,  for  example, 
when  there  is  a  second  mortgage,  it  will  be  presumed  that 
the  owner  of  the  premises  and  of  the  first  morti^age  did  not 
intend  that  his  mortgage  should  be  merged  in  his  estate  in 
the  land,  since  the  effect  of  such  merger  would  be  to  accord 
priority  to  the  second  mortgage  or  other  intervening  ineum- 
brance.^^^ 

Merger  does  not  result  when  the  mortgage  is  assigned  to 
one  of  two  or  more  tenants  in  common  of  the  mortgaged 
premises  ;^^°  nor,  under  the  modern  statutes  giving  married 

Agnew  V.  Charlotte,  C.  &  A.  R.  Co.,  24  S.  C.  18,  58  Am.  Rep.  237; 
Gresham  v.  Ware,  79  Ala.  192;  Goodwin  v.  Keney,  47  Conn.  486; 
Smith  V.  Roberts,  91  N.  Y.  470;  Campbell  v.  Knights,  24  Me.  332; 
Matthews  v.  Jones  (Neb.)  66  N.  W.  622. 

The  expressed  or  implied  intention  which  controls  is,  it  seems, 
that  existing  at  the  time  the  two  estates  come  together,  and  not 
that  which  may  be  afterwards  formed.  Given  v.  Marr.  27  Me.  212; 
2  Pomeroy,  Eq.  Jur.  §  792. 

338  Factors'  &  Traders'  Ins.  Co.  v.  Murphy,  111  U.  S.  738;  Adams 
Y.  Angell,  5  Ch.  Div.  634;  Mallory  v.  Hitchcock,  29  Conn.  127;  Clark 
v.  Glos,  180  111.  556,  72  Am.  St.  Rep.  223;  Bullard  v.  Leach,  27  Vt. 
491;  Den  d.  Van  Wagenen  v.  Brown,  26  N.  J.  Law,  196;  Watson  v. 
Dundee  Mortgage  &  Trust  Inv.  Co.,  12  Or.  474;  Birke  v.  Abbott. 
103  Ind.  1,  53  Am.  Rep.  474;  Patterson  v.  Mills,  69  Iowa,  755; 
Knowles  v.  Lawton,  18  Ga.  476,  63  Am.  Dec.  290;  Hunt  v.  Hunt, 
14  Pick.  (Mass.)  374,  25  Am.  Dec.  400;  James  v.  Morey,  2  Cow.  (N. 
Y.)  246,  14  Am.  Dec.  475;  Duncan  v.  Drury,  9  Pa.  St.  332,  49  Am. 
Dec.  565;  Aetna  Life  Ins.  Co.  v.  Corn,  89  111.  170;  Silliman  v.  Gam- 
mage,  55  Tex.  365. 

330  Lowman  v.  Lowman,  118  111.  582;  Stantons  v.  Thompson,  49 
N.  H.  272;  Duffy  v.  McGuiness,  13  R.  I.  595;  Hanlon  v.  Doherty,  109 
Ind.  37;  Denzler  v.  O'Keefo.  34  N.  J.  Eq.  361:  Ryer  v.  Gass,  130  Mass. 
227. 

340  Titsworth  v.  Stout,  49  111.  78,  95  Am.  Dec.  577;  Barker  v.  Flood, 
103  Mass.  474 

(1251) 


§   548  REAL  PROPERTY.  [Ch.  35 

women  coutrol  of  their  real  estate,  does  the  fact  that  the 
owners  of  the  mortgage  and  the  mortgaged  proj)erty  are  hus- 
band and  wife  cause  a  merger.^^^ 

A  merger  will  always  be  enforced  when  to  keep  the  mort- 
gage alive  would  involve  a  fraud  or  wrong  upon  some  inno- 
cent party,  since  equity  undertakes  to  prevent  a  merger  only 
when  this  is  necessary  for  purposes  of  justice."^^-  There  is 
necessarily  a  merger  if  an  owner  of  the  mortgaged  land,  who 
is  under  an  obligation  to  par  the  debt,  acquires  the  title  to 
the  mortgage,  since  ho  cannot  keep  the  mortgage  alive  to 
the  i)rejudice  of  other  persons  ;"^^  and  in  such  a  case,  even 
if  he  takes  an  assignment  of  the  mortgage,  the  mortgage  is 
extinguished.''^'' 

VI.       FOKECLOSUKE. 

The  right  to  foreclose  accrues  upon  the  breach  of  a  condition 
of  the  mortgage  as  ascertained  by  the  terms  of  the  mortgage, 
or  of  the  instrument  secured  thereby,  or  both. 

In  the  absence  of  a  statute  expressly  naming  the  period  with- 
in which  suit  to  foreclose  may  be  brought,  the  limitation  period 

■■*'  Bean  v.  Boothby,  57  Me.  295;  Power  v.  Lester,  23  N.  Y.  527; 
Bemis  v.  Call,  lU  Allen  (Mass.)  512. 

Bi^Andrus  V.  Vreeland,  29  N.  J.  Eq.  394;  Miller  v.  Whelan,  158 
111.  555;  Gardner  v.  Aster,  3  Johns.  Ch.  (N.  Y.)  53,  8  Am.  Dec.  465; 
2  Pomeroy,  Eq.  Jur.  §  794. 

343  Mickles  v.  Townsend,  18  N.  Y.  575;  Brown  v.  Lapham,  3  Cush. 
(Mass.)   551. 

34*  Jones  V.  Lamar,  34  Fed.  454;  Bunch  v.  Gi'ave,  111  Ind.  351; 
Brown  v.  Lapham,  3  Cush.  (Mass.)  554;  Russell  v.  Pistor,  7  N.  Y. 
171,  57  Am.  Dec.  509;  Lilly  v.  Palmer,  51  111.  331;  Theisen  v.  Day- 
ton, 82  Iowa,  74;  Burnham  v.  Dorr,  72  Me.  198;  Frey  v.  Vanderhoof, 
15  Wis.  436. 

One  who  has  conveyed  the  mortgaged  premises  with  a  covenant 
against  incumbrances  cannot  pay  off  the  mortgage  and  take  an  as- 
signment, or  otherwise  keep  it  alive,  in  direct  violation  of  his  cove- 
nant,- Jones  v.  Lamar  (C.  C.)  34  Fed.  454;  Mickles  v.  Townsend, 
18  N.  Y.  575;   Butler  v.  Seward,  10  Allen  (Mass.)  466. 

(1252) 


Ch.  35 1  MORTGAGES.  <   54S 

applicable  to  actions  to  recover  land  is  adopted  in  equity.  In 
the  majority  of  states,  the  right  to  foreclose  is  not  affected  by 
the  fact  that  the  personal  remedy  on  the  obligation  secured 
is  barred  by  the  statute  of  limitations. 

Foreclosure  in  this  country  is  usually  by  means  of  an  equi- 
table proceeding  to  obtain  a  sale  of  the  land,  and  payment  from 
the  proceeds  of  the  obligation  secured.  The  same  end  is  fre- 
quently attained  by  a  sale  under  a  power  in  the  mortgage, 
Avlthout  any  judicial  proceeding.  In  most  of  the  New  Eng- 
land states  foreclosure  is  usually  by  entry  or  writ  of  entry, 
which  gives  the  mortgagee  the  land  itself,  as  in  the  "strict 
foreclosure"  of  equity,  now  but  seldom  employed  outside  of 
one  or  two  states.  Scire  facias  is,  in  one  state,  the  recognized 
mode  of  foreclosure  The  personal  liability  of  the  mortgagor 
can  be  enforced  only  by  a  distinct  action  at  law,  except  in  those 
states  where  a  decree  for  a  deficiency  is  by  statute  allowed  in 
the  foreclosure  proceeding. 

''.  548.    Accrual  of  the  right  to  foreclose. 

Foreclosure  is  the  proceeding  by  wliicli  a  mortgagor  or 
other  owner  of  an  interest  in  the  land  is,  upon  his  failure  to 
comply  with  the  stipulations  of  the  mortgage  or  of  the  in- 
strument secured  thereby,  deprived  of  his  riglit  to  discharge 
the  land  from  the  lien  of  the  mortgage.^^^ 

The  right  to  foreclose  the  mortgage  accrues  upon  a  non- 
compliance with  a  stipulation,  the  performance  of  which  the 
mortgage  is  intended  to  secure,  and  not  before.^ ^^ 

Usually,  the  mortgage,  or  the  instrument  secured  thereby, 
provides  that  a  default  in  the  payment  of  an  installment  of 
principal  or  interest  shall  cause  the  whole  principal  to  im- 
mediately become  due,  at  the  mortgagee's  option,  thus  au- 

'45  Though  we  usually  speak  of  the  "foreclosure  of  a  mortgage," 
what  is  really  foreclosed  is  the  right  to  redeem  or  discharge  the^ 
mortgage.     See  Shepard  v.  Richardson.  145  Mass.  32. 

346  See  Trayser  v.  Trustees  of  Indiana  Asbury  University,  .39  Ind. 
556;  James  v.  Fisk,  9  Smedes  &  M.  (Miss.)  144,  47  Am.  Dec.  111. 

(1253) 


§   549  REAL  PROPERTY.  [Ch.  35 

tliorizing  a  foreclosure  for  the  whole  amount  upon  such  a  de- 
fault.^*''^  The  institution  of  a  suit  to  foreclose  for  the  whole 
amount  is  regarded  as  a  sufficient  exercise  by  the  mortgagee 
of  such  an  option,  without  any  previous  declaration  by  the 
mortgagee  of  his  desire  that  the  total  principal  be  consid- 
ered due.^*^ 

There  may  be,  by  express  stipulation,  a  right  to  foreclose 
upon  the  mortgagor's  failure  to  pay  taxes  on  the  land,^'*^  or 
upon  any  other  default  by  the  mortgagor,  as  in  the  payment 
of  insurance,  which  is  calculated  to  affect  the  security.  A 
demand  of  performance  after  default  is  not  necessary  before 
beginning  suit  to  foreclose.^  ^" 

§  549.     Bar  by  lapse  of  time. 

The  time  within  which  a  suit  to  foreclose  a  mortgage  must 
be  brought  is  sometimes  expressly  named  in  the  statute.^^^ 
In  the  absence  of  such  a  provision,  equity  has  usually  adopted 
the  period  necessary  to  bar  a  legal  action  to  recover  land,  as 

31T  Bushfield  v.  Meyer,  10  Ohio  St.  334;  Adams  v.  Essex,  1  Bibb 
(Ky.)  149.  4  Am.  Dec.  623;  Noyes  v.  Anderson,  124  N.  Y.  175; 
Schooley  v.  Remain,  31  Md.  574,  100  Am.  Dec.  87;  Atkinson  v.  Wal- 
ton. 162  Pa.  St.  219;  Parker  v.  Banks,  79  N.  C.  480;  Brown  v.  Mc- 
Kay, 151  111.  315;  Baldwin  v.  Van  Vorst,  10  N.  J.  Eq.  577;  Noell  v. 
Gaines,  68  Mo.  649;  Fletcher  v.  Daugherty,  13  Neb.  224;  Buchanan 
V.  Berkshire  Life  Ins.  Co.,  96  Ind.  510;  Heath  v.  Hall,  60  111.  344. 
And  the  statute  in  a  number  of  states  expressly  authorizes  fore- 
closure for  the  whole  on  nonpayment  of  an  installment.  1  Stim- 
son's  Am.  St.  Law,  §  1929. 

■^+8  Hewitt  V.  Dean,  91  Cal.  5;  Brown  v.  McKay.  151  111.  315; 
Buchanan  v.  Berkshire  Life  Ins.  Co..  96  Ind.  510;  Lowenstein  v.  Phe- 
lan,  17  Neb.  429:  Atkinson  v.  Walton.  162  Pa.  St.  219;  Dunton  v. 
Sharpe,  70  Miss.  850.  Compare  Schoonmaker  v.  Taylor,  14  Wis.  313; 
English  V.  Carney,  25  Mich.  178. 

-4^' Pope  V.  Durant.  26  Iowa.  233;  Condon  v.  Maynard,  71  Md.  601; 
Stanclift  v.  Norton,  11  Kan.  218;  2  Jones,  Mortgages,  §  117. 

350  Ferris  v.  Spooner,  102  N.  Y.  10;  Clemens  v.  Luce,  101  Cal.  432. 

3511  Stimson's  Am.  St.  Law,  §  1928:  Wood,  Limitations,  §  223;  2 
Dembitz,  Land  Titles,  §  189. 

(1254;, 


Ch.  ?5]  MORTGAGES.  i^   549 

determiniug  whether  the  right  of  foreclosure  has  been  lost 
by  lapse  of  time.^^" 

The  theory  usually  adopted  is  that  equity  will,  after  such 
a  lapse  of  time,  presume  that  the  claim  secured  by  the  mort- 
gage has  been  satisfied.^^^  This  presumption  may  be  re- 
butted by  showing  that,  within  this  period,  the  mortgagor  or 
his  representative  in  interest  has  acknowledged  the  existence 
of  the  liability  by  making  a  partial  payment  thereon,  or  oth- 
erwise f^'^  and,  according  to  a  few  decisions,  the  presumption 
may  be  rebutted  by  evidence  of  other  facts,  as  that  there  was 
a  relationship  between  the  mortgagor  and  mortgagee.^^^  Oc- 
casionally,  the  lapse  of  the  statutory  period  has  been  re- 

352  Christophers  v.  Sparke,  2  Jac.  &  W.  223;  Hughes  v.  Edwards,  9 
Wheat.  (U.  S.)  497;  Hall  v.  Denckla,  28  Ark.  506;  Howland  v. 
ShurtlefE,  2  Mete.  (Mass.)  26,  35  Am.  Dec.  384;  Nevitt  v.  Bacon,  32 
Miss.  212,  66  Am.  Dec.  609;  Jackson  v.  Wood.  12  Johns.  (N.  Y.)  242, 
7  Am.  Dee.  315;  Martin  v.  Bowker,  19  Vt.  526;  Tripe  v.  Marey,  39 
N.  H.  439;  Nevitt  v.  Bacon,  32  Miss.  212,  66  Am.  Dec.  609;  Wilkin- 
son V.  Flowers,  37  Miss.  579,  75  Am.  Dec.  78;  Bassett  \.  Monte 
Christo  Gold  &  Silver  Min.  Co..  15  Nev.  293;  Martin  v.  Stoddard,  127 
N.  Y.  61;  Haskell  v.  Bailey,  22  Conn.  569;  Richmond  v.  Aiken.  25  Vt. 
324. 

353  2  Story,  Eq.  Jur.  §  1028b;  Hughes  v.  Edwards,  9  Wheat.  (U. 
S.)  497;  Pitzer  v.  Burns,  7  W.  Va.  63;  Howland  v.  ShurtlefE,  2  Mete. 
(Mass.)  26.  35  Am.  Dee.  384;  Hammonds  v.  Hopkins,  3  Yerg.  (Tenn.) 
528;  Downs  v.  Looy,  28  N.  J.  Eq.  55:  Tripe  v.  Marcy,  39  N.  H.  439; 
Belmont  v.  O'Brien,  12  N.  Y.  394;  Brown  v.  Hardeastle,  63  Md. 
484;  Kellogg  v.  Dickinson,  147  Mass.  432;  Joy  v.  Adams.  26  Me.  330. 

354  Cross  v.  Allen,  141  U.  S.  528;  Brown  v.  Hardeastle,  63  Md. 
484;  Locke  v.  Caldwell,  91  111.  417;  Kellogg  v.  Dickinson,  147  Mass. 
432;  Kendall  v.  Tracy,  64  Vt.  522;  Blair  v.  Carpenter,  75  Mich.  167; 
2  Jones,  Mortgages,  §  1198. 

:'-5- Wanmaker  v.  V^an  Buskirk,  1  N.  J.  Eq.  685,  23  Am.  Dec.  748; 
Jackson  v.  Wood,  12  Johns.  (N.  Y.)  242,  7  Am.  Dee.  315;  Knight  v. 
McKinney.  84  Me.  107;  Howland  v.  Shurtleff,  2  Mete.  (Mass.)  26, 
35  Am.  Dec.  384;  Philbrook  v.  Clark,  77  Me.  176;  Hale  v.  Pack's 
Ex'rs,  10  W.  Va.  145.  But  see  Cheever  v.  Perley,  11  Allen  (Mass.) 
584;  Kellogg  v.  Dickinson,  147  Mass.  432.  to  the  effect  that  there 
must  be  some  act  of  recognition  of  the  claim  to  rebut  the  presump- 
tion. 

(1255) 


5<   549  REAL  PROPERTY.  [Ch.  35 

garded,  not  as  raising  a  presumption  of  payment  or  satisfac- 
tion, but  as  barring  the  foreclosure  proceeding  by  analogy 
to  the  bar  in  an  action  to  recover  land.^^^ 

Bar  of  obligation  secured. 

By  the  weight  of  authority,  the  expiration  of  the  period 
allowed  for  bringing  suit  on  the  personal  obligation  secured 
by  the  mortgage  does  not  bar  suit  to  foreclose.^^"  In  some 
states,  however,  a  different  view  is  taken,  and  the  running 
of  the  statute  against  the  personal  obligation  defeats  the  right 
of  foreclosure.^^^ 

-56  Wilkinson  v.  Flowers,  37  Miss.  579,  7-5  Am.  Dec.  78.  See  Bacon 
V.  Mclntire,  8  Mete.   (Mass.)   87. 

A  few  cases  apparently  adopt  this  theory  to  the  extent  of  holding 
that,  since  the  defendant's  possession  must  be  adverse  in  order  to 
bar  an  action  to  recover  land,  and  since  a  mortgagor's  possession  is 
not  adverse  to  the  mortgagee  (see  ante,  §  443),  the  right  of  fore- 
closure is  not  barred,  as  against  a  mortgagor  in  possession,  even  by 
the  lapse  of  the  statutory  period  after  default,  unless  the  mort- 
gagor's possession  has  become  adverse  by  a  repudiation  of  the 
mortgagee's  rights.  Whittington  v.  Flint,  43  Ark.  504,  51  Am.  Rep. 
572  (semble);  Lewis  v.  Schwenn,  93  Mo.  26,  3  Am.  St.  Rep.  511; 
Confbs  V.  Goldsworthy,  109  Mo.  151;  Chouteau  v.  Riddle,  110  Mo. 
366;  Hodgdon  v.  Heidman,  66  Iowa,  645;  Ellsberry  v.  Boykin,  65 
Ala.  336. 

,  357  Pratt  V.  Huggins,  29  Barb.  (N.  Y.)  277,  Kirchwey's  Cas.  753; 
Hulbert  v.  Clark,  128  N.  Y.  295;  Bizzell  v.  Nix,  60  Ala.  281,  31  Am. 
Rep.  38;  Belknap  v.  Gleason.  11  Conn.  160.  27  Am.  Dec.  721;  Browne 
v.  Browne,  17  Fla.  607,  35  Am.  Rep.  96;  Crooker  v.  Holmes,  65  Me. 
195,  20  Am.  Rep.  687;  Demuth  v.  Old  Town  Bank  of  Baltimore,  85 
Md.  315,  60  Am.  St.  Rep.  322;  Myer  v.  Beal,  5  Or.  130;  Crain  v.  Paine, 
4  Cush.  (Mass.)  483,  50  Am.  Dec.  807;  Cookes  v.  Culbertson,  9  Nev. 
199;  Fisher's  Ex'r  v.  Mossman,  11  Ohio  St.  42;  Wood  v.  Augustine, 
61  Mo.  46;  Norton  v.  Palmer,  142  Mass.  433;  Wilkinson  v.  Flowers, 
37  Miss.  579,  75  Am.  Dec.  78;  Richmond  v.  Aiken,  25  Vt.  324. 

358  Coles  V.  Withers,  33  Grat.  (Va.)  186;  Lord  v.  Morris,  18  Cal. 
482,  Kirchwey's  Cas.  763;  Harris  v.  Mills,  28  HI.  44,  81  Am.  Dec.  259, 
Kirchwey's  Cas.  769;  Pollock  v.  Maison,  41  111.  516;  Schmucker  v. 
Sibert,  18  Kan.  104,  26  Am.  Rep.  765;  Perkins  v.  Sterne,  23  Tex.  561, 
76  Am.  Dec.  72;  Smith  v.  Foster,  44  Iowa,  442. 

(1256) 


Ch.  35]  MORTGAGES.  55   550 

§  550.     Strict  foreclosure  in  equity. 

Before  the  right  of  redemption  was  recognized  by  courts 
of  equity,  no  foreclosure  was  necessarj^,  since  the  mere  breach 
of  the  condition  vested  an  absolute  estate  in  the  mortgagee. 
When,  however,  the  right  of  redemption  came  to  be  recog- 
nized, it  was,  in  justice  to  the  mortgagee,  necessary  that  a 
time  be  limited  within  which  this  right  should  be  exercised, 
and  chancery  accordingly  adopted  the  practice  of  issuing  a 
decree,  upon  the  filing  of  a  bill  by  the  mortgagee,  cutting 
off  the  right  of  redemption  if  not  exercised  by  a  time 
named.^^^  Such  a  decree,  in  effect  vesting  the  title  to  the 
land  in  the  mortgagee  unless  there  was  a  redemption  within 
a  period  named,  was  at  one  time  the  only  method  of  fore 
closure ;  but  since  the  introduction  of  a  foreclosure  by  sale 
of  the  land,  it  has  acquired  the  distinctive  name  of  "strict 
foreclosure.  "^'^"^ 

This  method  of  foreclosure  has  not  been  favored  in  this 
country,  since  it  is  liable  to  result  in  forfeiting  the  whole 
property  to  the  mortgagee  on  account  of  a  debt  considerably 
less  than  the  value  of  the  property.  It  is  however,  recog- 
nized in  a  number  of  states  as  an  appropriate  form  of  pro- 
ceeding under  special  circumstances,  when  not  calculated  to 
prejudice  either  of  the  parties  in  interest  ;^^^  and  it  is  con- 
sidered especially  applicable  in  order  to  cut  off'  the  rights  of 
subsequent  incumbrancers  or  lien  holders. ^'^-     In  states  wliere 

3594  Kent's  Comm.  181;   Coote,  Mortgages   (4th  Ed.)   990. 

360  See  4  Kent's  Comm.  181;  2  Jones,  Mortgages,  §§  1538-1570; 
Lansing  v.  Goelet,  9  Cow.  (N.  Y.)  346;  Clark  v.  Reyburn,  8  Wall. 
(U.  S.)   318. 

301  Farrell  v.  Parlier,  50  111.  274;  Stephens  v.  Bichnell,  27  111.  444. 
81  Am.  Dec.  242;  Illinois  Starch  Co.  v.  Ottawa  Hydraulic  Co..  125 
111.  237;  Moulton  v.  Cornish,  138  N.  Y.  133;  Bresnahan  v.  Bresnahan, 
46  Wis.  385. 

362  Jefferson  v.  Coleman,  110  Ind.  515;  Bolles  v.  Duff,  43  N.  Y.  469; 
Shaw  V.  Hersey,  48  Iowa,  468;  Ross  v.  Boardman.  22  Hun  (N.  Y. ) 
527,  Finch's  Cas.  1118. 

(1257) 


§   551  REAL  PROPERTY.  [(Jh.  35 

the  statute  absolutely  requires  a  sale  of  the  land,  a  strict  fore- 
closure is  of  course  not  permissible.^^^  It  is  apparently  a 
usual  method  of  foreclosure  in  Connecticut  and  Vermont.^^'* 
A  decree  of  strict  foreclosure  vests  the  absolute  title  in  the 
mortgagee,^*^"  but  the  mortgage  debt  is  not  necessarily  satis- 
fied, and  the  mortgagor's  personal  liability  for  any  excess  in 
the  amount  of  the  mortgage  over  the  value  of  the  land  may 
be  enforced  in  an  action  at  law.^^*^ 

§  551.     Foreclosure  by  entry. 

Akin  to  strict  foreclosure  in  equity,  as  vesting  in  the 
mortgagee  an  absolute  estate  in  the  land  itself,  is  foreclosure 
by  the  peaceable  entry  of  the  mortgagee  upon  the  premises, 
and  his  retention  of  possession  thereafter  for  a  specified  time. 
This  is  provided  for  by  the  statutes  of  Maine,  Massachusetts, 
ISTew  Hampshire,  and  Rhode  Island.^^' 

The  entry  must  be  in  the  presence  of  witnesses,  whose  cer- 
tificate as  to  the  entry  is  filed  for  record,  and  this  serves  as 
notice  to  the  owner  and  persons  interested  in  the  land.^^^ 

•■'•■2  See  Goodenow  v.  Ewer,  16  Cal.  461,  76  Am.  Dec.  540;  Browne 
V.  Browne.  17  Fla.  607,  623,  35  Am.  Rep.  96. 

36*  Waters  v.  Hubbard,  44  Conn.  340 ;  Devereaux  v.  Fairbanks,  52 
Vt.  587;  Gen.  St.  Conn.  §  3023;  St.  Vt.  1894,  §§  978,  979;  2  Jones, 
:\Iortgages,  §  1326. 

365  Waters  v.  Hubbard,  44  Conn.  340;  Ellis  v.  Leek,  127  111.  60; 
Brainard  v.  Cooper,  10  N.  Y.  356;  Bradley  v.  Chester  Valley  R.  Co.,  36 
Pa.  St.  141;  Champion  v.  Hinkle,  45  N.  J.  Eq.  162. 

••«6  Hatch  V.  White,  2  Gall.  152,  Fed.  Cas.  No.  6,209;  Spencer  v. 
Harford.  4  Wend.  (N.  Y.)  386:  Vansant  v.  Allmon,  23  111.  30;  Hazard 
V.  Robinson,  15  R.  I.  226;  Devereaux  v.  Fairbanks,  52  Vt.  587;  Paris 
V.  Hulett,  26  Vt.  308.  See  Windham  County  Sav.  Bank  v.  Himes, 
55  Conn.  433. 

3'57 1  Stimson's  Am.  St.  Law,  §  1921.     See  2  Jones,  Mortgages,  c.  28. 

36S  Thompson  v.  Kenyon,  100  Mass.  108;  Bennett  v.  Conant,  10 
Cush.  (Mass.)  163;  Snow  v.  Pressey,  82  Me.  552;  Thompson  v.  Ela, 
58  N.  H.  490. 

(1258) 


Ch.  35]  MORTGAGES.  g   552 

The  statutes  require  that  the  entry  be  peaceable,  and,  if  it  is 
opposed,  judicial  proceedings  must  be  resorted  to.^®^ 

The  severity  of  foreclosure  in  this  way  without  a  sale  is 
mitigated  by  provisions  of  the  statutes  giving  a  c<»nsiderable 
time  after  entry  in  which  the  property  may  be  redeemed; 
this  being  three  years,  except  in  N^ew  Hampshire,  where  it 
is  one  year.^"*^  The  effect  of  the  foreclosure  is  to  cancel  the 
mortgage  debt  to  the  extent  of  the  value  of  the  land  at  the 
time  at  which  the  foreclosure  is  completed.^ '^^ 

§  552.     Foreclosure  by  writ  of  entry. 

In  Maine,  Massachusetts,  and  New  Hampshire,  the  mort- 
gagee may  bring  a  wi'it  of  entry  for  the  purpose  of  fore- 
closure. This  proceeding,  though  in  form  a  common-law  ac- 
tion, has,  when  used  for  the  purpose  of  foreclosure,  the  gen- 
eral characteristics  of  an  equity  proceeding,  the  amount  due 
being  ascertained  on  equitable  principles,  and  the  judgment 
being  that,  if  this  sum  is  not  paid  within  a  certain  time,  the 
mortgagee  shall  be  put  into  possession  of  the  land.^^-  When 
so  put  into  possession,  the  mortgagee  is  in  the  position  of  a 
mortgagee  who  has  peaceably  entered  without  action,  and 
possession  by  him  for  the  length  of  time  required  in  such 
case,  as  stated  in  the  preceding  section,  will  give  him  an  in- 
defeasible title.^'^ 

369  Rev.  Laws  Mass.  1902,  c.  187,  §  1;  Rev.  St.  Me.  1883,  c.  90,  §  3; 
Gen.  Laws  R.  L  1896,  c.  207,  §  3;  Pub.  St.  N.  H.  1901,  c.  139,  §  14. 
3T0  1  Stimson's  Am.  St.  Law,  §  1921. 

371  Hatch  V.  White,  2  Gall.  152,  Fed.  Gas.  No.  6,209;  Morse  v.  Mer- 
ritt,  110  Mass.  458;  Hunt  v.  Stiles,  10  N.  H.  466;  Flint  v.  Winter 
Harbor  Land  Co.,  89  Me.  420;  Newall  v.  Wright,  3  Mass.  138,  3  Am. 
Rep.  98. 

372  Holbrook  v.  Bliss,  9  Allen  (Mass.)  69;  Ladd  v.  Putnam,  79  Me. 
568;  2  Jones,  Mortgages,  c.  29. 

373  1  Stimson's  Am.  St.  Law.  §  1925  (A)  (3).  (C)  (2):  2  Jones, 
Mortgages,  §  1306. 

(1250) 


S   553  REAL  PROPERTY.  [Ch.  35 

§  553.     Equitable  proceeding  for  sale. 

The  most  usual  method  of  foreclosure  in  this  country  is 
bv  a  suit  in  ecjuitj,  or  by  a  civil  proceeding  under  the  code 
in  the  nature  of  a  suit  in  equity,  to  obtain  a  sale  of  the  land, 
and  payment  of  the  mortgage  debt  from  the  proceeds.^ ^* 
The  decree  in  such  a  proceeding  finds  the  amount  due  on  the 
mortgage  debt,  this  being  determined  either  by  the  court  or 
by  a  clerk,  master,  or  other  officer  ;^'''^  and  also  orders  a  sale 
of  the  land  by  an  officer,  who  is  usually  designated  by  the 
statute.''^"*' 

If  the  mortgagor  has  conveyed  portions  of  the  property  to 
diiferent  owners,  the  decree  should  provide  for  their  sale  in 
the  inverse  order  of  alienation,  in  accordance  with  the  rule 
of  liability  previously  stated.^''  In  any  case,  the  court 
should,  if  it  seems  most  for  the  interests  of  either  party,  and 
not  incompatible  with  the  interests  of  the  other,  order  a  sale 
of  the  land  in  separate  parcels,  instead  of  en  masse  f^  and  in 
some  states  such  discretion  is  to  be  exercised  by  the  oflScer 
making  the  sale.^^^ 

374  2  Jones,  Mortgages,  §  1317;  Wiltsie,  Mortgage  Foreclosure,  § 
3;  1  Stimson's  Am.  St.  Law,  §  1925. 

■•'•'•  Wernwag  v.  Brown,  3  Blackf.  (Ind.)  457,  26  Am.  Dec.  433; 
Wilson  Sewing  Mach.  Co.  v.  Rutledge,  60  Iowa,  39;  Tompkins  v. 
Wiltberger,  56  111.  385;  Hoy  v.  Bramhall,  19  N.  J.  Eq.  74;  Collier 
V.  Ervln,  2  Mont.  335;  Vaughn  v.  Nims,  36  Mich.  297;  Kelly  v.  Sear- 
ing, 4  Abb.  Pr.   (N.  Y.)   354. 

•■'-li  See  Heyer  v.  Deaves,  2  Johns.  Ch.  (N.  Y.)  154;  State  v.  Hol- 
liday,  35  Neb.  327;   Mayer  v.  Wick,  15  Ohio  St.  548. 

-7"  See  ante,  530. 

3T8  Livingston  v.  Mildrum,  19  N.  Y.  440;  Pancoast  v.  Duval,  26 
N.  J.  Eq.  445;  Macomb  v.  Prentis,  57  Mich.  225. 

If  the  mortgage  covers  distinct  tracts  of  land,  these  should  be 
sold  separately.  Patton  v.  Smith,  113  111.  499;  Brake  v.  Brownlee, 
91  Ind.  359;  Schilling  v.  Lintner,  43  N.  J.  Eq.  444;  Cunningham  v. 
Cassidy,  17  N.  Y.  276. 

3'9  Jones  V.  Gardner,  57  Cal.  641;  Stone  v.  Missouri  Guarantee 
Savings  &  Building  Ass'n,  58  111.  App.  78;  Hughes  v.  Riggs,  84 
Md.  502. 

(1260) 


Ch.  35]  MORTGAGES.  ?j   553 

The  decree  of  sale  cannot  be  attacked  collaterally  for  ir 
regularities  therein  which  do  not  affect  the  jurisdiction,  and, 
until  reversed,  it  is  binding  on  all  parties  to  the  suit.^^*^  An 
innocent  purchaser  at  the  sale  is  not  affected  by  a  subsequent 
reversal  of  the  decree,  though  the  rule  is  different  if  the  pur- 
chaser is  the  mortgagee,  or  some  other  party  to  the  proceed- 
ing, and  a  sale  to  him  is  invalidated  by  the  reversal.'"^^^ 

The  sale,  to  be  valid,  must,  in  most  jurisdictions,  be  con- 
firmed by  the  court,^^^  and  a  deed  to  the  purchaser  is  usually, 
if  not  invariably,  made  by  the  officer  conducting  the  sale.^^^ 
Any  surplus  proceeds  of  sale  remaining  after  the  payment  of 
the  debt  secured  by  the  mortgage  are  thereafter  paid  to  the 
mortgagor,  or,  'if  there  are  subsequent  purchasers  or  incum- 
brancers, such  surplus  proceeds  belong  to  them,  usually  in 
the  order  in  which  their  interests  were  acquired.^^^ 

The  completed  sale  vests  in  the  purchaser  whatever  title 
the  mortgagor  had  when  he  executed  the  mortgage,^^^  and 
thus  cuts  off  the  interests  of  any  subsequent  purchasers  or  in- 

3S0  Reynolds  v.  Harris,  14  Cal.  667,  76  Am.  Dec.  459;  Woolery  v. 
Grayson,  110  Ind.  149;   Burford  v.  Rosenfield,  37  Tex.  42. 

3*1  Reynolds  v.  Harris,  14  Cal.  667,  76  Am.  Dec.  459;  Phillips  v. 
Benson,  82  Ala.  500;  Gott  v.  Powell,  41  Mo.  416;  Hubbell  v.  Broad- 
well's  Adm'rs,  8  Ohio,  120;  Adams  v.  Odom,  74  Tex.  206;  Lambert 
V.  Livingston,  131  HI.  161;  17  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  1017- 
1019. 

3S2  Williamson  v.  Berry,  8  How.  (U.  S.)  495;  Lathrop  v.  Nelson, 
4  Dill.  194,  Fed.  Cas.  No.  8,111;  Wells  v.  Rice,  34  Ark.  346;  Hart  v. 
Burch,  130  111.  426;  Allen  v.  Poole,  54  Miss.  323;  Woehler  v.  Endter. 
46  Wis.  301. 

383  2  Jones,  Mortgages,  §§  1652-1655;  Jackson  v.  Warren,  32  111. 
331;  Mitchell  v.  Bartlett,  51  N.  Y.  447. 

3S4See  2  Jones,  Mortgages,  §§  1684-1698;  Wiltsie,  Mortgage  Fore- 
closure, cc.  32,  33. 

385  King  V.  McCully,  38  Pa.  St.  76;  Davis  v.  Connecticut  Mut.  Life 
Ins.  Co.,  84  111.  508;  Christ  Protestant  Episcopal  Church  v.  Mack. 
93  N.  Y.  488,  45  Am.  Rep.  260,  Kirch wey's  Cas.  304;  Poweshiek 
County  V.  Dennison,  36  Iowa,  244,  14  Am.  Rep.  521:  Champion  v. 
Hinkle,  45  N.  J.  Eq.  162. 

(1261) 


§   554  REAL  PROPERTY.  ^Q^     35 

cumbrancers,  wlio  were  made  parties  to  the  proceeding,  and 
deprives  them  of  all  right  of  redemption.^^''  Persons  whose 
interests  and  claims  were  prior  to  the  mortgage  are  not  af- 
fected bj  the  sale,  and  the  purchaser  acquires,  as  against 
them,  no  better  title  than  the  mortgagor  had  at  the  time  of 
making  the  mortgage.^^'  If,  however,  a  prior  mortgagee  is 
made  a  party  to  the  proceeding,  and  the  bill  contains  suffi- 
cient allegations,  he  is  barred  by  the  decree,  the  bill  in  such 
case  being  one  both  to  foreclose  the  second  mortgage  and  to 
redeem  from  the  first  mortgage.^^^ 

In  a  number  of  states,  the  statute  gives  the  mortgagor  and 
other  persons  interested  a  right  to  redeem  for  a  certain 
period  after  the  sale,  such  period  varying  in  different  states 
from  six  months  to  two  years.^^^  This  right  is  purely  the 
creation  of  statute,  and  is  to  be  carefully  distinguished  from 
the  right  of  redemption  in  equity  before  foreclosure. 

§  554.     Parties  to  proceeding — Persons  interested  in  mortgage. 

The  mortgagee,  if  he  has  not  assigned  his  rights,  is,  of 
course,  the  proper  party  plaintiff  in  a  foreclosure  suit.     An 

3S0  McMillan  v.  Richards,  9  Cal.  365,  70  Am.  Dec.  655;  Frische  v. 
Kramer's  Lessee,  16  Ohio,  125,  47  Am.  Dec.  368;  Christ  Protestant 
Episcopal  Church  v.  Mack,  93  N.  Y.  488;  Shaw  v.  Heisey,  48  Iowa. 
468;  Gamble  v.  Horr,  40  Mich.  561. 

387  Hefner  v.  Northwestern  Life  Ins.  Co.,  123  U.  S.  747;  McMillan 
V.  Richards,  9  Cal.  365,  70  Am.  Dec.  655;  Banning  v.  Bradford,  21 
Minn.  308,  18  Am.  Rep.  398;  Bozarth  v.  Landers,  113  111.  181;  Emi- 
grant Industrial  Sav.  Bank  v.  Goldman,  75  N.  Y.  127;  Lewis  v. 
Smith,  9  N.  Y.  502,  61  Am.  Dec.  706;  Iowa  County  Sup'rs  v.  Mineral 
Point  R.  Co.,  24  Wis.  93,  121;  City  &  County  of  San  Francisco  v. 
Lawton,  18  Cal.  465;  Summers  v.  Bromley,  28  Mich.  125.  And  see  1 
Stimson's  Am.  St.  Law,  §  1927. 

388  Hefner  v.  Northwestern  Life  Ins.  Co.,  123  U.  S.  747;  Hagan 
V.  Walker,  14  How.  (U.  S.)  29,  37;  Jerome  v.  McCarter,  94  U.  S.  734; 
Haines  v.  Beach,  3  Johns.  Ch.  (N.  Y.)  459;  Hudnit  v.  Nash,  16  N.  J. 
Eq.  550;  Cronin  v.  Hazeltine,  3  Allen  (Mass.)   324. 

389  See  1  Stimson's  Am.  St.  Law,  §  1944;  11  Am.  &  Eng.  Enc.  Law 
(2d  Ed.)  pp.  213,  226,  232. 

(1262) 


QYy,  35]  MORTGAGES.  §  554 

assignee  of  the  mortgage  debt,  with  or  wirlioni  the  mort- 
gage, may  foreclose,  and  is  the  proper  person  Xo  do  so,  since 
he  is  the  person  interested  in  realizing  on  the  secnrity  ;^'^" 
and  one  to  whom  the  mortgage  and  the  debt  are  assigned 
merely  as  collateral  security  may  foreclose,^^^  as  may  his  as- 
signor, since  the  latter  is  still  interested  in  the  mortgage 
debt.^''-  One  who  is  entitled  to  but  part  of  the  mortgage 
debt,  as  being  the  assignee  of  one  of  the  notes  secured,  or 
otherwise,^^'^  and  likewise  a  person  who  is  subrogated  to  the 
rights  of  the  mortgagee,  may  foreclose.^^'* 

One  who  has  assigned  the  mortgage  absohitely  cannot  in- 
stitute a  foreclosure  suit,  since  he  is  no  longer  a  party  in  in- 
terest ;^^^  nor  can  one  to  whom  the  mortgage  alone  is  as- 
signed, without  the  debt.^^^ 

In  cases  in  which  all  the  persons  interested  in  the  mort- 
gage debt  do  not  join  as  plaintiffs  in  the  institution  of  \hv 
proceeding,  those  not  so  joining  must  be  uiado  ]^arties  (h- 

390  Bendey  v.  Townsend,  109  U.  S.  665;  Center  v.  Planters'  &  Mer- 
chants' Bank,  22  Ala.  743;  Carper  v.  Hunger,  62  Ind.  481;  Holmes  v. 
French,  70  Me.  341;  Merritt  v.  Bartholick,  36  N.  Y.  44. 

391  Hunter  v.  Levan,  11  Cal.  11;  Chicago  &  Great  Western  Rail- 
road Land  Co.  v.  Peck,  112  111.  408,  439;  Bard  v.  Poole,  12  N.  Y.  495: 
McKinney  v.  Miller,  19  Mich.  142;  Brown  v.  Tyler,  8  Gray  (Mass.  i 
135.     See  Chew  v.  Brumagen,  13  Wall.   (U.  S.)  497. 

392  Norton  v.  Warner,  3  Edw.  Ch.  (N.  Y.)  106;  Hopson  v.  Aetna 
Axle  &  Spring  Co.,  50  Conn.  597;  Consolidated  Nat.  Bank  of  San 
Diego  V.  Hayes,  112  Cal.  75:   Wells  v.  Wells,  53  Vt.  1. 

3'J3Goodall  V.  Mopley,  45  Ind.  355;  Pugh  v.  Holt,  27  Miss.  461: 
Studebaker  Bros.  Mfg.  Co.  v.  McCargur.  20  Neb.  500:  Utz  v.  Utz,  34 
La.  Ann.  752;  2  Jones,  Mortgages,  §  1378. 

394  Risk  V.  Hoffman,  69  Ind.  137;  Wood  v.  Smith,  51  Iowa,  156: 
Shinn  v.  Shinn,  91  111.  477;  Hamilton  v.  Dobbs,  19  N.  J.  Eq.  227.  See 
ante,  §  345. 

395  Cutler  V.  Clementson  (C.  C.)  67  Fed.  409:  Barraque  v.  Manuel. 
7  Ark.  516;  Call  v.  Leisner,  23  Me.  25;  Pryor  v.  Wood.  31  Pa.  St.  142. 
See  McGuffey  v.  Finley,  20  Ohio,  474:  Gould  v.  Newman,  6  Mass.  239. 

396  Bulkley  v.  Chapman,  9  Conn.  5;  Pope  v.  Jacobus.  10  Iowa.  263; 
Ellison  V.  Daniels,  11  N.  H.  274;  Merritt  v.  Bartholick.  36  N.  Y.  44;  4 
Kent's  Comm.  194. 

(1263) 


§   554  REAL  PROPERTY.  [Ch.  35 

fendant,  in  order  to  cut  off  their  interests,  and  pass  a  clear 
title  to  the  mortgagee  or  purchaser  at  the  mortgage  sale.^^' 
Accordingly,  one  who  has  assigned  the  mortgage  as  collat- 
eral security,"''*  or  received  such  an  assignment,^^^  and  joint 
owners  with  the  plaintiff"  of  the  mortgage,  including  owners 
of  other  notes  secured  thereby,*^^  must  be  made  parties  in 
order  to  cut  off  their  rights  against  the  land. 

Personal  representatives  of  mortgage  claimant. 

Upon  the  death  of  the  owner  of  the  mortgage  debt,  the  title 
thereto,  with  the  right  to  proceed  by  foreclosure,  passes  to 
his  j^ersonal  representatives,  and  not  to  his  heirs,  and  conse- 
quently the  former  are  the  proper  persons  to  foreclose.'*"^ 

In  the  case  of  a  mortgage  owned  jointly  by  more  than  one 
person,  the  doctrine  of  '^survivorship"  applies,  and,  on  the 
death  of  one,  the  survivor  or  survivors  may  foreclose  without 
making  the  representatives  of  the  deceased  owner  parties  to 
the  suit.^^'- 

387  Mangels  v.  Donaii  Brewing  Co.  (C.  C.)  53  Fed.  513;  Pine  v. 
Shannon,  30  N.  J.  Eq.  501;  Goodall  v.  Mopley,  45  Ind.  355. 

398  Woodruff  V.  Depue,  14  N.  J.  Eq.  168;  Dalton  v.  Smith,  86  N.  Y. 
176. 

399  Plowman  v.  Riddle,  14  Ala.  169. 

*oo  Goodall  V.  Mopley,  45  Ind.  355;  Rankin  v.  Major,  9  Iowa,  297; 
Johnson  v.  Brown,  31  N.  H.  405;  Pettibone  v.  Edwards,  15  Wis.  95; 
Bacon  v.  O'Keefe,  13  Wash.  655;  Myers  v.  Wright,  33  111.  285;  Dele- 
spine  V.  Campbell,  45  Tex.  628;  Brown  v.  Bates,  55  Me.  520. 

401  Thornborough  v.  Baker,  3  Swanst.  628;  White  v.  Rittenmyer. 
30  Iowa,  268;  Felch  v.  Hooper,  20  Me.  163;  Newton  v.  Stanley,  28 
N.  Y.  61;  Griffin  v.  Lovell,  42  Miss.  402;  Miller  v.  Donaldson,  17  Ohio, 
264;  Buck  v.  Fischer,  2  Colo.  182;  Roath  v.  Smith,  5  Conn.  133; 
Douglass  V.  Durin,  51  Me.  121. 

^"2  Williams  v.  Hilton,  35  Me.  547,  58  Am.  Dec.  729;  Lannay  v. 
Wilson,  30  Md.  536;  Blake  v.  Sanborn,  8  Gray  (Mass.)  154.  But 
that  such  representatives  must  be  made  parties,  see  Mutual  Life  Ins. 
Co.  of  New  York  v.  Sturges.  32  N.  J.  Eq.  678. 

(1264) 


Ch.   35]  MORTGAGES.  JJ  554 

Persons  interested  in  land. 

Since  the  purpose  of  a  foreclosure  proceeding  is  to  cut  off 
rights  of  redemption,  all  those  persons  having  such  rights 
should  be  made  parties.  Accordingly,  as  a  general  rule,  all 
persons  who  arc  in  anj'  way  interested  in  the  mortgaged  land, 
and  whose  rights  were  acquired  after  the  mortgage,  should  be 
made  parties,  in  order  that  their  rights  of  redemption  may 
be  completely  extinguished  by  the  foreclosure.'*"^ 

All  owners  of  liens  of  an^^  kind  subsequent  to  the  mort- 
gage, including  subsequent  mortgagees  and  judgment  credit- 
ors, should  be  made  parties.^"^ 

The  failure  to  make  any  particular  lienor  a  party  does  not 
invalidate  the  foreclosure  proceeding  for  all  purposes,  but 
only  as  regards  such  person,  who  still  has  the  right  to  re- 
deem.**'^ A  failure  to  make  the  owner  of  an  estate  in  the 
land  a  party  has,  on  the  other  hand,  the  effect  not  only  of 
rendering  the  proceeding  ineffective  for  the  purpose  of  cut- 
ting off  his  right  of  redemption,  but  renders  it  utterly  nuga- 
tory for  the  purpose  of  divesting  his  estate,  and  a  purchaser 
at  the  sale  is  in  such  case  merely  subrogated  to  the  rights  of 
tlio  mortgagee  as  against  such  owner. "^"^ 

«•"  Clark  V.  Reyburn,  8  Wall.  (U.  S.)  318;  Noyes  v.  Hall,  97  U.  S. 
34;  Ballard  v.  Carter,  71  Tex.  161. 

404  Alexander  v.  Greenwood.  24  Cal.  506;  Goodman  v.  White,  26 
Conn.  317;  Wiley  v.  Ewing,  47  Ala.  423;  Strang  v.  Allen,  44  111.  428; 
Hosford  V.  Johnson,  74  Ind.  479;  Street  v.  Beal,  16  Iowa,  68,  85  Am. 
Dec.  504;  Harris  v.  Hooper,  50  Md.  537;  Brainard  v.  Cooper,  10 
N.  Y.  356;   Peabody  v.  Roberts,  47  Barb.    (N.  Y.)   91. 

405  Bradley  v.  Snyder,  14  111.  263,  58  Am.  Dec.  564;  Porter  v.  Kil- 
gore,  32  Iowa.  379;  Frische  v.  Kramer's  Lessee,  16  Ohio,  125,  47 
Am.  Dec.  368;  Harris  v.  Hooper,  50  Md.  537;  Anson  v.  Anson,  20 
Iowa.  55,  89  Am.  Dec.  514;  Kay  v.  Whittaker,  44  N.  Y.  565;  Street  v. 
Beal,  16  Iowa,  68,  85  Am.  Dec.  504;  Johnson  v.  Hosford,  110  Ind. 
572;  Johnson  v.  Hambleton,  52  Md.  378;  Cram  v.  Cotreli,  48  Neb. 
646. 

406  Watson  V.  Spence,  20  Wend.  (N.  Y.)  260;  Boggs  v.  Hargrave. 
16  Cal.  559.  76  Am.  Dec.  561;   Stark  v.  Brown,  12  Wis.  572,  78  Am. 

(1265) 
Real  Prop.— 80. 


§  554  REAL  PROPERTY.  [Ch.  35 

The  mortgagor  need  not  be  made  a  party  if  he  has  trans- 
ferred all  his  interest,  unless  it  is  desired  to  obtain  a  personal 
judgment  against  him.^'^'^ 

On  the  death  of  an  owner  of  the  mortgaged  land,  his  heirs 
must  be  made  parties  ;^°^  or,  in  case  the  mortgaged  land  is 
devised,  his  devisees.'*^^ 

The  wife  of  the  mortgagor  or  of  a  subsequent  purchaser 
of  the  property,  if  entitled  to  dower,  should  be  made  a  party 
if  her  right  of  dower  is  subordinate  to  the  mortgage,  as  where 
she  joined  therein  ;^^^  and  the  wife's  right  of  homestead  can- 
not generally  be  foreclosed  unless  she  is  a  party  to  the  fore- 
closure proceeding.^^^ 

Dec.  762;  Ohling  v.  Luitjens,  32  111.  23;  Watts  v.  Julian,  122  Ind. 
124;  Terrell  v.  Allison,  21  Wall.  (U.  S.)  292;  Berlack  v.  Halle,  22 
Fla.  236,  1  Am.  St.  Rep.  185;  Barrett  v.  Blackmar,  47  Iowa,  565;  Wil- 
liams V.  Terrell,  54  Ga.  462;  Bailey  v.  Myrick,  36  Me.  50;  Lenox  v. 
Reed,  12  Kan.  223;  Raynor  v.  Selmes,  52  N.  Y.  579;  Childs  v.  Childs, 
10  Ohio  St.  339,  75  Am.  Dec.  512;  Carpenter  v.  Ingalls,  3  S.  D.  49; 
Hall  V.  Huggins,  19  Ala.  200;  Boggs  v.  Fowler,  16  Cal.  559,  76  Am. 
Dec.  561;  Reed  v.  Marble,  10  Paige  (N.  Y.)  409;  South  Carolina 
Mfg.  Co.  V.  Price,  4  Rich.    (S.  C.)   338. 

407  Boutwell  V.  Steiner,  84  Ala.  307,  5  Am.  St.  Rep.  375;  Johnson 
V.  Monell,  13  Iowa,  300;  Davis  v.  Hardy,  76  Ind.  272;  Miller  v. 
Thompson,  34  Mich.  10;  Andrews  v.  Stelle,  22  N.  J.  Eq.  478;  Bigelow 
V.  Bush,  6  Paige  (N.  Y.)  343;  Buchanan  v.  Monroe,  22  Tex.  537. 

408  Hunt  V.  Acre,  28  Ala.  580;  Kiernan  v.  Blackwell,  27  Ark.  235 
Lane  v.  Erskine,  13  111.  501;    White  v.  Rittenmyer,   30   Iowa,   268 
Britton  v.  Hunt,  9  Kan.  228;  Abbott  v.  Godfroy's  Heirs,  1  Mich.  178 
Isler  V.  Koonce,  83  N.  C.  55;   Stark  v.  Brown,  12  Wis.  572,  78  Am. 
Dec.  762. 

In  some  states,  however,  under  particular  statutes,  it  is  sufficient 
to  make  tne  personal  representative  a  party.  See  9  Enc.  PI.  &  Pr.  311. 

409  Chew  v.  Hyman  (C.  C.)  7  Fed.  7;  Chadbourn  v.  Johnston,  119 
N.  C.  282. 

410  Leonard  v.  Villars'  Adm'r,  23  111.  377;  McArthur  v.  Franklin, 
15  Ohio  St.  485,  16  Ohio  St.  193;  Swan  v.  Wiswall.  15  Pick.  (Mass.) 
126;  Byrne  v.  Taylor,  46  Miss.  95.  See  Merchants'  Bank  v.  Thom- 
son, 55  N.  Y.  7.     And  see  ante,  §  190. 

411  Revalk  v.  Kraemer,  8  Cal.  66,  68  Am.  Dec.  304;  Morris  v.  Ward, 
5  Kan.  246;  Larson  v.  Reynolds,  13  Iowa,  584.     Compare  Townsend 

(1266) 


Ch.  35]  MORTGAGES.  §  555 

Persons  asserting  adverse  claims  to  the  mortgaged  land, 
alleged  to  be  paramount  to  the  rights  of  the  mortgagee,  are 
not  proper  parties  to  the  foreclosure  proceeding,  since  the 
object  of  such  proceeding  is  to  cut  off  the  right  of  redemption 
of  persons  whose  rights  are  subject  to  the  mortgage,  and 
not  to  determine  the  title  to  the  property.'*^-  So,  upon  a 
foreclosure  proceeding  by  a  junior  mortgagee,  it  is  not 
proper,  as  a  general  rule,  to  make  a  prior  mortgagee  or  other 
prior  lienor  a  party,  since  his  rights  are  not  subject  to  the 
mortgage,  but  the  land  will  be  sold  subject  to  his  lien.^^-^ 
If,  however,  the  prior  lienor  is  made  a  party,  and  the  com- 
plainant specifically  asks  that  his  claim  be  first  paid  from 
the  proceeds  of  the  sale,  and  he  consents  thereto,  the  land 
may  be  sold  free  from  his  lien.^^'*  Such  a  proceeding  is,  as 
against  the  prior  lienor,  in  effect  a  bill  to  redeem  from  his 
lien. 

§  555.     Power  of  sale. 

Owing  to  the  delays  a]id  expense  incident  to  foreclosure 
by  bill  in  equity,  and  the  difficulty  of  making  proper  parties 

Sav.  Bank  of  New  Haven  v.  Epping,  3  Woods,  390,  Fed.  Cas.  No. 
14,120. 

412  Dial  V.  Reynolds,  96  U.  S.  340;  City  &  County  of  San  Francisco 
V.  Lawton,  18  Cal.  465,  79  Am.  Dec.  187;  Hambrick  v.  Russell,  86 
Ala.  199;  Banning  v.  Bradford,  21  Minn.  308,  18  Am.  Rep.  398; 
Lewis  V.  Smith,  9  N.  Y.  502,  61  Am.  Dec.  706;  Summers  v.  Bromley, 
28  Mich.  125;  Kinsley  v.  Scott,  58  Vt.  470;  Bogey  v.  Shute,  57  N.  C. 
174;  Strobe  v.  Downer,  13  Wis.  10,  80  Am.  Dec.  709,  note.  See  au- 
thorities cited  in  King  v.  Mason,  89  Am.  Dec.  434,  note. 

<i3  Tome  V.  Merchants'  &  Mechanics'  Permanent  Building  &  Loan 
Co.,  34  Md.  12;  Hancock  v.  Hancock,  22  N.  Y.  568;  Krutsinger  v. 
Brown,  72  Ind.  466;  White  v.  Holman,  32  Ark.  753;  Strobe  v.  Dow- 
ner, 13  Wis.  10,  80  Am.  Dec.  709,  note;  Hague  v.  Jackson,  71  Tex.  761; 
Hagan  v.  Walker,  14  How.  (U.  S.)  29,  37. 

414  Emigrant  Industrial  Sav.  Bank  v.  Goldman,  75  N.  Y.  127;  Ray- 
mond V.  Holborn,  23  Wis.  57;  Waters  v.  Bossel,  58  Miss.  602;  Clark 
V.  Prentice,  3  Dana  (Ky.)  468;  ante,  note  388. 

(1267) 


^   555  REAL  PROPERTY.  [Ch.  35 

thereto,  the  device  has  been  largely  resorted  to  of  inserting 
in  the  mortgage  a  "power  of  sale,"  as  it  is  called,  being  a 
provision  authorizing  the  mortgagee  to  sell  the  property, 
without  resort  to  a  judicial  proceeding,  in  case  of  default. 
In  this  country,  such  powers  were  in  general  use  earlier  than 
in  England,  and  they  have  been  recog-nized  as  valid,  even  in 
the  absence  of  any  statute  authorizing  them.^^^  There  are, 
however,  in  many  states,  statutes  expressly  authorizing  or 
recogTiizing  such  powers.^^^  In  a  few  states,  on  the  other 
hand,  it  is  provided  by  statute  that  a  power  of  sale  in  a  mort- 
gage shall  not  authorize  a  sale  otherwise  than  by  decree  of 
court,  or  there  is  an  implication  to  that  effect  from  a  require- 
ment that  foreclosure  shall  be  by  judicial  proceedings,*^''' 

The  question  wdiether  such  a  power  of  sale  in  the  mort- 
gagee is  terminated  by  the  death  of  the  mortgagor  before  its 
exercise  has  been  the  subject  of  a  number  of  decisions.  For 
the  purpose  of  considering  this  question,  it  is  important  to 
distinguish  between  those  jurisdictions  in  which  the  mort- 
gagee vests  the  legal  title  in  the  mortgagee  and  those  in  which 
it  does  not.  When  the  mortgagee  has  the  legal  title,  the 
power  of  sale  answers  to  the  definition  of  a  power  "couj^led 
with  an  interest,"  as  being  "engrafted  on  an  estate  in  the 
thing,"  and  as  being  exercised  by  the  donee  of  the  power, 
not  in  the  name  of  the  donor  of  the  power,  but  in  the  name 
of  the  donee.*^-      In  other  words,  it  is  not  a  mere  "power  of 

41-:.  Walthall's  Ex'rs  v.  Rives,  34  Ala.  91;  Bloom  v.  Van  Rensselaer, 
15  111.  503;  Eaton  v.  Whiting,  3  Pick  (Mass.)  484;  Clark  v.  Gondii, 
18  N.  J.  Eq.  358;  Hyman  v.  Devereux,  63  N.  C.  624;  Bradley  v. 
Chester  Valley  R.  Co.,  36  Pa.  St.  141;  First  Nat.  Bank  of  Butte  v. 
Bell  Silver  &  Copper  Min.  Co.,  8  Mont.  32;  Very  v.  Russell,  65  N.  H. 
646. 

410  See  1  Stimson's  Am.  St.  Law,  §  1924;  2  Jones,  Mortgages,  c.  39; 
Wiltsie,  Mortgage  Foreclosure,  c.  34. 

417  1  Stimson's  Am.  St.  Law,  §  1924  (D) ;  2  Jones,  Mortgages,  §§ 
1733-1740,  1747,  1748. 

418  Hunt  V.  Rousmanier's  Adm'rs,  8  Wheat.  (U.  S.)  175. 

(1268) 


Ch.    35]  MORTGAGES.  ;j   555 

agency,"  but  is  what  \vc  have  referred  to  as  an  "equitable 
power,"  being  a  j)ower  in  the  holder  of  the  bare  legal  title 
to  convey  the  equitable  interest.^ ^'^  Consequently,  it  con- 
fers a  right  of  a  proprietary  character,  which  is  not  divested 
by  the  death  of  the  person  who  conferred  the  right, — the 
mortgagor.^ -"^  In  those  jurisdictions,  however,  in  which  the 
legal  title  does  not  pass  to  the  mortgagee,  but  nnnains  in 
the  mortgagor,  the  power  cannot  be  regarded  as  a  power 
coupled  with  an  interest,  but  is  merely  a  "power  of  agency" 
in  the  mortgagee,  which  cannot  be  exercised  in  his  own  name, 
because  he  has  no  title  to  the  land,  and,  being  exercisable 
only  in  the  name  of  the  mortgagor,  cannot  be  exercised  after 
the  latter's  death.'*-^      But  even  in  this  latter  class  of  juris- 

419  Edwards,  Prop.  Land,  209.  "When  the  legal  fee  is  vested  in 
the  mortgagee,  a  power  of  sale  given  to  him  operates  in  equity  only, 
and  is  in  effect  a  trust."  2  Hayes,  Conveyancing  (5th  Ed.)  141. 
note.    See  ante,  §  276. 

In  Hall  V.  Bliss,  18  Mass.  554,  19  Am.  Rep.  476,  Gray,  C.  J.,  assumes 
that  a  power  in  the  mortgagee  to  sell  on  default  operates  as  a  legal 
power  of  appointment,  taking  effect  under  the  statute  of  uses,  such 
as  is  described  ante,  §§  275-277.  And  the  same  idea  is  indicated  in 
the  decisions  cited  post,  note  426.  If  this  were  so,  the  mere  sale 
would  operate  as  an  appointment  of  the  use,  and  the  legal  title  would 
vest  in  the  vendee  without  any  conveyance  by  the  mortgagee, — a  view 
which  has  never  been  adopted  apart  from  statute.  See  2  Jones, 
Mortgages,  §  1889  et  seq.  Furthermore,  a  mortgage  in  the  ordinary 
form  would  seem  to  be  inadequate  for  the  creation  of  a  power  of 
appointment,  it  not  raising  any  seisin  to  serve  uses,  and  not  con- 
taining any  declaration  of  uses.  Compare  Sugden,  Powers,  149; 
Farwell,  Powers,  3. 

420  Hudgins  v.  Morrow,  47  Ark.  515;  Berry  v.  Skinner.  .30  Md.  567; 
Beatie  v.  Butler,  21  Mo.  313,  64  Am.  Dec.  234;  McGuire  v.  Van  Pelt, 
55  Ala.  344;  Varnum  v.  Meserve,  8  Allen  (Mass.)  158;  Bergen  v. 
Bennett,  1  Caines  Cas.  (N.  Y.)  1;  Strother  v.  Law,  54  111.  413;  Carter 
V.  Slocomb,  122  N.  C.  475,  65  Am.  St.  Rep.  714. 

421  Johnson  v.  Johnson,  27  S.  C.  309,  13  Am.  St.  Rep.  636;  Wilkins 
V.  McGehee,  86  Ga.  764;  Baum  v.  Raley,  53  S.  C.  32;  Lockett  v.  Hill,  1 
Woods,  552,  Fed.  Cas.  No.  8,443. 

In  Texas,  though  the  legal  title  does  not  there  vest  in  the  mort- 
gagee, it  has  been  decided  that  the  power  of  sale  survives  the  death 

(1269) 


I   555  REAL  PROPERTY.  [Ch.   35 

dictions  the  mortgagor  cannot,  by  voluntary  act,  revoke  the 
power. ^^^ 

The  power  will  usually  pass  to  the  assigns  of  the  mortgagee 
when  the  latter  has  the  legal  title,"*^^  while  it  will  not  do  so, 
it  would  seem,  in  jurisdictions  in  which  the  legal  title  re- 
mains in  the  mortgagor.  Moreover,  in  the  former  class  of 
states,  the  mortgagee's  personal  representative,  as  the  suc- 
cessor to  the  mortgagee's  interest  upon  his  death,  is  regarded 
as  entitled  to  exercise  the  power  in  his  place  and  stead/^^ 
while  in  the  latter  class  the  power  must  be  regarded  as  per- 
sonal to  the  mortgagee,  like  any  other  power  of  agency. -^^ 

It  is  usually  stated  that  the  purchaser  under  the  power  of 
sale  acquires  the  title  which  the  mortgagor  had  at  the  time 
of  making  the  mortgage,  unaffected  by  any  subsequent  trans- 

of  the  mortgagor.  Rogers'  Heirs  v.  Watson,  81  Tex.  400;  Robert- 
son's Adm'x  V.  Paul,  16  Tex.  472.  These  cases  merely  adopt,  with- 
out discussion,  the  statements  made  in  other  states  that  the  power 
is  "coupled  with  an  interest."  They  cannot  be  supported  under  the 
doctrine  of  Hunt  v.  Rousmanier's  Adm'rs,  8  Wheat.  (U.  S.)  175. 

•422  Mutual  Loan  &  Banking  Co.  v.  Haas,  100  Ga.  Ill,  62  Am.  St. 
Rep.  317.  "Where  a  letter  of  attorney  forms  a  part  of  a  contract, 
and  is  a  security  for  money,  or  for  the  performance  of  any  act 
which  is  deemed  valuable,  it  is  generally  made  irrevocable  in  terms, 
or,  if  not  so,  is  deemed  irrevocable  in  law."  Hunt  v.  Rousmanier's 
Adm'rs,  8  Wheat.  (U.  S.)  174.  So  in  the  case  of  a  deed  of  trust 
vesting  the  legal  title  in  the  trustee.     More  v.  Calkins,  95  Cal.  435. 

423  Wilson  V.  Troup,  2  Cow.  (N.  Y.)  195,  14  Am.  Dec.  458;  Mc- 
Guire  v.  Van  Pelt,  55  Ala.  344  (by  stat.)  ;  Pickett  v.  Jones,  63  Mo.  195; 
Sanford  v.  Kane,  133  HI.  199,  23  Am.  St.  Rep.  602;  Harnickell  v. 
Orndorff,  35  Md.  341;  Chilton  v.  Brooks,  71  Md.  450.  See  Randall  v. 
Hazelton,  12  Allen  (Mass.)  412.  Occasionally,  the  right  of  the 
mortgagee's  assigns  to  exercise  the  power  is  made  dependent  on 
the  express  mention  of  "assigns"  in  the  creation  of  the  power.  Dol- 
bear  v.  Norduft,  84  Mo.  619;  Chilton  v.  Brooks,  71  Md.  450.  And  see 
Pardee  v.  Lindley,  31  111.  174.  Such  is  the  rule  in  England.  2  Rob- 
bins,  Mortgages,  890. 

424  Lewis  V.  Wells,  50  Ala.  198;  Harnickell  v.  Orndorff,  35  Md. 
341;  Collins  v.  Hopkins,  7  Iowa,  463;  Merrin  v.  Lewis,  90  111.  505. 

425  See  Barrick  v.  Horner,  78  Md.  253,  44  Am.  St.  Rep.  283. 

(1270) 


Ch.  35 1  MORTGAGES.  §  555 

fers  or  liens.^-*^  This  is  unquestionably  the  case  when  the 
mortgage  vests  the  legal  title  in  the  mortgagee,  since  such 
legal  title,  vested  in  the  mortgagee  for  certain  purposes,  in- 
cluding that  of  sale,  cannot  be  divested  by  any  equity  subse- 
quently accruing  in  favor  of  a  third  person.  When,  how- 
ever, the  mortgage  gives  the  mortgagee  merely  a  lien,  since 
the  sale  under  the  power  is  merely  the  exercise  of  a  power 
of  agency,  and  it  is,  in  legal  effect,  the  act  of  the  principal,  it 
can,  it  would  seem,  in  the  absence  of  a  statute  providing  other- 
wise, transfer  only  such  title  as  the  mortgagor  has  at  the 
time  of  sale.^^' 

Mode  of  procedure. 


The  statute  usually  contains  provisions  as  to  the  notice  of 
sale,  to  be  given  by  publication  or  otherwise,  and  also  as  to 
the  manner  of  conducting  the  sale,  and  these  are  controlling, 
even  when  in  conflict  with  the  terms  of  the  power  in  the  mort- 
gage."*^^  These  latter  control,  however,  in  the  absence  of  an 
overruling  statutory  provision,  and  they  must  be  strictly  com- 
plied with.^-^      There  is  usually  a  requirement  in  the  statute 

426  2  Jones,  Mortgages,  §  1897;  Doolittle  v.  Lewis,  7  Johns.  Ch. 
(N.  Y.)  45,  11  Am.  Dec.  389;  Sims  v.  Field,  66  Mo.  Ill;  Torrey  v. 
Cook,  116  Mass.  163;  Brown  v.  Smith,  116  Mass.  108;  Aiken  v. 
Bridgeford,  84  Ala.  295;  Powers  v.  Andrews.  84  Ala.  289;  Bull's  Pe- 
tition, 15  R.  I.  534;  Woonsocket  Sav.  Institution  v.  American  Wor- 
sted Co.,  13  R.  I.  255. 

These  decisions,  while  correct  in  their  results,  are  based  on  the 
view,  erroneous,  it  would  seem,  that  the  power  of  sale  in  the  mort- 
gagee is  a  power  to  appoint  a  use.     See  ante,  note  419. 

427  This  difBculty  is,  in  some  states,  obviated  by  statute,  as  in  New 
York  (see  Thomas,  Mortgages,  §  1139)  and  Wisconsin  (Nau  v.  Bru- 
nette, 79  Wis.  664 ) . 

428  Butterfield  v.  Farnham,  19  Minn.  85  (Gil.  38);  Webb  v.  Hoef- 
fer,  53  Md.  187;  Pierce  v.  Grimley,  77  Mich.  273;  Bragdon  v.  Hatch, 
77  Me.  433. 

429  Ormsby  v.  Tarascon,  3  Litt.  (Ky.)  404;  Thornburg  v.  Jones, 
36  Mo.  514;  Bigler  v.  Waller,  14  Wall.  (U.  S.)  297;  Hall  v.  Towne, 
45  111.  493:  Cranston  v.  Crane,  97  Mass.  459. 

(1271) 


§   555  REAL  PROPERTY.  [Ch.  35 

or  in  the  mortgage  that  the  sale  shall  be  bj  public  auction, 
but,  in  the  absence  of  such  express  requirement,  the  sale  may 
be  private.*^*' 

In  the  absence  of  a  statutory  provision  or  an  express  stipu- 
lation in  the  mortgage  to  the  contrary,  a  mortgagee  cannot 
usually  purchase  at  a  sale  made  by  him  under  such  a  power, 
since  he  bears,  so  far  as  concerns  the  exercise  of  such  a 
power,  at  least  a  quasi  trust  relation  towards  others  inter- 
ested in  the  land,  and  a  sale  to  him  will  be  set  aside  upon  an 
application,  made  with  reasonable  promptness,  by  the  ownei* 
of  the  land  or  other  person  interested  therein.'^^^ 

The  power  usually  provides  that  the  mortgagee  shall  make 
a  conveyance  to  the  person  purchasing  at  the  sale,  and  this 
he  may  no  doubt  do  when  the  legal  title  is  in  him  under  the 
mortgage.^^^  When,  however,  by  the  law  of  the  state,  he 
is  not  the  holder  of  the  legal  title,  he  cannot,  unless  author- 
ized by  statute,  convey  it  to  another,  and  he  must  make  such 
a  conveyance  merely  as  the  representative  or  attorney  of  the 
mortgagor,    and    in    the    latter's    name.^^^      Sometimes    the 

430  Davey  v.  Durrant,  1  De  Gex  &  J.  535;  Mowry  v.  Sanborn,  68 
N.  Y.  153,  160.     See  Griffin  v.  Marine  Co.  of  Chicago,  52  111.  130. 

431  Hyndman  v.  Hyndman,  19  Vt.  9,  Kirchwey's  Cas.  582;  Ezzel 
V.  Watson,  83  Ala.  120;  Blockley  v.  Fowler,  21  Cal.  326.  82  Am.  Dec. 
747;  Allen  v.  Ranson.  44  Mo.  263,  100  Am.  Dec.  282;  Hall  v.  Towne. 
45  111.  493;  Shew  v.  Call,  119  N.  C.  450,  56  Am.  St.  Rep.  678;  Howard 
V.  Ames,  3  Mete.  (Mass.).  308;  Very  v.  Russell,  65  N.  H.  646;  Dyer 
V.  Shurtleff,  112  Mass.  165;  Mutual  Loan  &  Banking  Co.  v.  Haas,  100 
Ga.  Ill,  62  Am.  St.  Rep.  317;  McCall  v.  Mash,  89  Ala.  487,  18  Am. 
St.  Rep.  145. 

If  the  mortgage  in  terms  authorizes  the  mortgagee  to  purchase, 
he  may  do  so.  Knox  v.  Armistead,  87  Ala.  511,  13  Am.  St.  Rep.  65; 
Ellenbogen  v.  Griffey,  55  Ark.  268;  Mutual  Loan  &  Banking  Co.  v. 
Haas,  100  Ga.  Ill,  62  Am.  St.  Rep.  317;  Montague  v.  Dawes,  12  Allen 
(Mass.)  397;  Elliott  v.  Wood,  45  N.  Y.  71. 

432  Tripp  V.  Ide,  3  R.  I.  51;  Pease  v.  Pilot  Knob  Iron  Co.,  49  Mo. 
124;  Munn  v.  Burges,  70  111.  604. 

433  Dendy  v.  Waite,  36  S.  C.  569;  Williams  v.  Washington,  40  S.  C. 
457. 

(1272) 


Ch.  35]  MORTGAGES.  ^  555 

power  provides  expressly  that  he  shall  make  the  conveyance 
as  the  attorney  of  the  mortgagor.'*^* 

The  statute  sometimes  requires  that  a  certificate  or  affi- 
davit by  the  mortgagee  as  to  the  proceedings  leading  up  to 
the  sale  shall  be  recorded  by  him.  Such  a  provision  is,  how- 
ever, regarded  as  directory  only,  and  not  mandatory.'*'^^ 

Any  surplus  over  and  above  the  mortgage  debt  must  be 
paid  over  to  the  mortgagor  or  to  other  persons  having  inter- 
ests in  the  property  subsequent  to  the  mortgage,  as  in  the 
case  of  a  sale  under  decree  of  court.'*^^ 

Sale  under  deed  of  trust. 


In  some  parts  of  the  country,  particularly  in  the  South,  a 
"deed  of  trust"  is  commonly  used  to  secure  debts,  the  land 
being  thereby  conveyed  to  a  trustee,  usuallj^  with  a  provision 
that  he  reconvey  to  the  grantor  if  the  debt  be  paid,  and  that, 
in  case  of  nonpayment,  he  sell  the  land,  and  apply  the  pro- 
ceeds of  the  sale  in  paying  the  debt.  Such  an  instrument 
is  commonly  used  in  all  parts  of  the  country  when  the  per- 
sons whose  claims  are  to  be  secured  are  numerous,  or  when 
they  are  unknown,  and  it  is  universally  used  to  secure  issues 
of  bonds  by  corporations. 

In  some  of  the  states,  where  a  mortgagee  does  not  acquire 
the  legal  title,  a  deed  of  trust  of  this  character  is  regarded 
as  merely  in  effect  a  mortgage,  and  as  consequently  uot  vest- 
ing any  legal  title  in  the  trustee,  so  called,  and  this  ajDpar- 
ently  without  reference  to  whether  the  parties  intended  that 

13-t  Cranston  v.  Crane,  97  Mass.  459,  93  Am.  Dec.  106;  Speer  v. 
Hadduck,  31  111.  439;  Miilvey  v.  Gibbons,  87  111.  367. 

■435  See  1  Stimson's  Am.  St.  Law,  §  1924;  Tiithill  v.  Tracy.  31  N.  Y. 
157;  Field  v.  Gooding,  106  Mass.  310;  Mundy  v.  Monroe.  1  Mich.  68. 

•436  Cope  V.  Wheeler,  41  N.  Y.  303;  Buttrick  v.  Wentworth,  6  Al- 
len (Mass.)  79;  Newhall  v.  Lynn  Five  Cents  Sav.  Bank,  101  Mass. 
428,  3  Am.  Rep.  387;  Stoever  v.  Stoever,  9  Serg.  &  R.  (Pa.)  434: 
Reynolds  v.  Hennessy,  15  R.  I.  215.  See  1  Stimson's  Am.  St.  Law, 
§  1924e. 


S   555  REAL  PROPERTY.  [Ch.    35 

he  should  have  the  legal  title.^^^  In  others  of  such  states, 
the  grantee  in  the  deed  is  regarded  as  actually  having  the 
legal  title.  ■^^^  But  even  in  this  latter  class  of  states,  pre- 
sumably the  conveyance  would  be  construed  as  not  convey- 
ing the  legal  title  upon  a  clear  expression  of  intention  to  that 
effect,  and,  generally  speaking,  the  question  whether  a  par- 
ticular instrument  is  to  be  regarded  as  merely  a  mortgage, 
or  as  a  conveyance  of  the  legal  title  to  a  trustee  for  the  pur- 
pose of  selling  the  land  in  certain  contingencies  in  order  to 
pay  a  debt  or  debts,  would  seem  to  be  properly  a  question 
of  the  construction  of  the  langiiage  of  the  particular  instru- 
ment, and  this  view  is  quite  ordinarily  adopted.  The  fact 
that  the  conveyance  is  to  the  creditor,  though  named  as  a 
trustee,  rather  than  to  a  third  person,  is  usually  regarded  as 
conclusive  that  the  instrument  is  a  mortgage,^"^  and  the  use 
of  a  provision  ordinarily  found  in  a  mortgage,  that  the  con- 
veyance shall  be  void  if  the  debt  is  paid  at  maturity,  is  ap- 
parently evidence  to  the  same  effect  f*^  while,  on  the  other 

43TMcLane  v.  Paschal,  47  Tex.  365;  Hurley  v.  Estes,  6  Neb.  386; 
Thompson  v.  Marshall,  21  Or.  171.  Where  this  view  is  taken,  the 
trustee's  power  of  sale  would  seem  to  be  subject  to  the  same  infirmi- 
ties as  attend  a  power  of  sale  in  a  mortgage  in  states  where  the 
mortgagee  has  no  legal  title.     See  ante,  §  454. 

438  Koch  V.  Briggs,  14  Cal.  256,  73  Am.  Dec.  651;  Bateman  v.  Burr, 
57  Cal.  480;  Soutter  v.  Miller,  15  Fla.  625;  Devin  v.  Hendershott, 
32  Iowa,  192;  Stephens  v.  Clay,  17  Colo.  489.  See  Reece  v.  Allen, 
10  111.  236,  48  Am.  Dec.  336. 

•*3o  Marvin  v.  Titsworth,  10  Wis.  320;  Merrill  v.  Hurley,  6  S.  D. 
592,  55  Am.  St.  Rep.  859.  And  see  Sargent  v.  Howe,  21  111.  148; 
Baton  V.  Whiting,  3  Pick.  (Mass.)  484.  Contra,  More  v.  Calkins,  95 
Cal.  435,  29  Am.  St.  Rep.  128. 

■iio  See  Austin  v.  Sprague  Mfg.  Co.,  14  R.  I.  464;  Shaw  v.  Norfolk 
County  R.  Co.,  5  Gray  (Mass.)  162,  181;  De  Wolf  v.  Sprague  Mfg. 
Co.,  49  Conn.  283;  Wisconsin  Cent.  R.  Co.  v.  Wisconsin  River  Land 
Co.,  71  Wis.  94:  Turner  v.  Watkins,  31  Ark.  429.  But  see  Reece  v. 
Allen,  10  111.  236,  48  Am.  Dec.  336.  So,  in  Ohio,  the  instrument  Is 
merely  a  mortgage  if  it  contains  a  condition  that  it  shall  be  void  if 
the  debt  is  paid  when  due;  while  it  is  a  deed  of  trust,  vesting  all  the 
(1274) 


Ch.  35 j  MORTGAGES.  ij   557 

band,  the  fact  that  the  instrument  names  no  time  at  which 
the  trustee  shall  exercise  his  power  of  sale,  or  at  which  the 
right  of  redemption  shall  terminate,  tends  to  show  that  it  is 
not  a  mortgaco.^^^  Such  a  conveyance,  however,  even  though 
regarded  as  strictly  a  deed  of  trust,  as  distinguished  from  a 
mortgage,  may,  as  having  some  of  the  elements  of  a  mort- 
gage, be  within  the  scope  of  a  statute  in  reference  to  sales 
under  a  power  in  a  mortgage.^^^ 

The  same  rule  applies  to  a  purchase  by  the  trustee  selling 
under  the  power  as  to  a  sale  by  a  mortgagee,  and  a  sale  to 
himself  may  be  set  aside.'*^^ 

§  556.     Scire  facias. 

In  Pennsylvania,  foreclosure  is  by  a  writ  of  scire  facias, 
issued  twelve  months  after  default,  requiring  the  mortgagor, 
his  heirs  or  executors,  to  show  cause  why  the  mortgaged  land 
should  not  be  taken  in  execution  for  the  mortgage,  and,  on 
the  rendition  of  judgment  in  favor  of  the  mortgagee,  a  writ 
of  levari  facias  issues,  under  which  the  land  is  sold.*'**  Fore- 
closure by  scire  facias  is  also  allowed  by  the  statutes  of  two 
or  three  other  states,  but  it  is  not  apparently  a  usual  method 
of  procedure.* *° 

?  557.     Stipulation  for  attorney's  fees. 

A  stipulati<;in  in  the  mortgage  or  instrument  evidencing 
the  debt  secureJ  that,  upon  foreclosure,  there  shall  be  in- 
legal  estate  in  the  trustee,  if  it  is  in  form  an  absolute  conveyance 
for  the  purpose  of  raising  money  to  pay  the  debt  if  it  is  not  paid  as 
agreed.    Martin  v.  Alter,  42  Ohio  St.  94. 

**i  Shepard  v.  Richardson,  145  Mass.  32;  2  Perry.  Trusts,  602d. 

i*- Shillaber  v.  Robinson,  97  U.  S.  75;  Cross  v.  Fombey,  54  Ark. 
179;  Wolfe  v.  Dowell,  13  Smedes  &  M.  (Miss.)   103. 

443  Cunningham  v.  Macon  &  B.  R.  Co.,  156  U.  S.  400;  Williamson 
V.  Stone,  128  111.  129;  Lass  v.  Sternberg,  50  Mo.  124. 

**i  1  Brightley,  Purd.  Dig.  §  169,  p.  659,  et  seq. 

^^-■Laws  Del.  1893,  p.  843;  2  Starr  &  Curt.  Ann.  St.  111.  c.  95,  S 
IS:  Gen.  St.  N.  J.  p.  2103,  §§  4,  5. 

(1275) 


§   558  REAL  PROPERTY.  [Ch.    35 

eluded  in  the  decree  the  amount  of  the  attorney's  fees  in  the 
foreclosure  proceeding,  is  valid,  in  the  majority  of  states,'^^^ 
though  in  some  a  different  view  is  taken.'*^'  The  amount  of 
the  attorney's  fees  named  in  such  stipulation  is  not,  how- 
ever, it  has  been  held,  conclusive  upon  the  court,  and  it  may 
allow  such  less  sum  as  may  seem  reasonable. ^^^ 

§  558.     Enforcement  of  personal  liability. 

As  previously  stated,  the  mortgage  is  usually  given  to  se- 
cure a  debt  for  which  the  mortgagor  is  personally  liable,  and 
the  enforcement  of  this  liability  becomes  a  matter  of  im- 
portance in  case  the  amount  of  the  debt  cannot  be  realized 
from  the  mortgaged  property.  It  has  always  been  consid- 
ered, in  the  absence  of  a  statutory  provision  to  the  contrary , 
that  the  mortgagee  may  enforce  his  different  rights  at  the 
same  time,  pursuing  concurrently  his  suit  in  equity  to  fore- 
close and  his  action  at  law  on  the  note  or  bond  evidencing 
the  mortgagor's  personal  liability.'*^^  Likewise,  recovery  in 
an  action  on  the  debt  does  not  affect  the  right  to  subsequently 
foreclose  ;'*^'^  nor  does  the  completion  of  foreclosure  prevent 

4i6Tholen  v.  Duffy,  7  Kan.  405,  Kirchwey's  Cas.  493;  Barry  v. 
Guild,  126  111.  439;  McAllister's  Appeal,  59  Pa.  St.  204;  Pierce  v. 
Kneeland,  16  Wis.  672;  Mason  v.  Luce,  116  Cal.  232;  Bowie  v.  Hall, 
69  Md.  434,  9  Am.  St.  Rep.  433;  Miner  v.  Paris  Exchange  Bank,  53 
Tex.  559. 

i-if  Thomasson  v.  Townsend,  10  Bush  (Ky.)  114;  Kittermaster  v. 
Brossard,  105  Mich.  219,  55  Am.  St.  Rep.  437;  Security  Co.  of  Hart- 
ford V.  Eyer,  36  Neb.  507;  Jarvis  v.  Southern  Grocery  Co.,  63  Ark. 
225.     See  State  v.  Taylor,  10  Ohio,  378. 

448  Daly  V.  Maitland,  88  Pa.  St.  384,  32  Am.  Rep.  457,  Kirchwey's 
Cas.  495.  See  Gibson  v.  Southwestern  Land  Co.,  89  Wis.  49.  Con- 
tra, under  statute,  Scholey  v.  De  Mattos,  18  Wash.  504. 

440  Burnell  v.  Martin,  2  Doug.  417;  Booth  v.  Booth,  2  Atk.  343; 
Gilman  v.  Hlinois  &  Mississippi  Telegraph  Co..  91  U.  S.  603,  616; 
Very  v.  Watkins,  18  Ark.  546;  Coit  v.  Fitch,  Kirby  (Conn.)  254,  1 
Am.  Dec.  20;  Vansant  v.  Allmon,  23  HI.  30;  Copperthwait  v.  Dum- 
mer,  18  N.  J.  Law,  258;  Brown  v.  Cascaden,  43  Iowa,  103. 

450  Connecticut  Mut.  Life  Ins.  Co.  v.  Jones,  1  McCrary,  388,  8  Fed. 
303;   Thornton  v.  Pigg,  24  Mo.  249;   Wahl  v.  Phillips,  12  Iowa,  81. 
See  ante,  §  549. 
(1276) 


Ch.   35]  MORTGAGES.  §  558 

a  subsequent  suit  to  recover  on  the  personal  liability,  unless 
the  result  of  the  foreclosure  is  to  satisfy  the  clebt.'*^^ 

In  foreclosure  proceeding. 


Formerly,  in  case  the  proceeds  of  the  sale  of  the  property 
were  insufficient  to  pay  the  obligation,  the  only  mode  in 
which  the  mortgagee  could  enforce  the  mortgagor's  personal 
liability  was  by  a  separate  action  at  law  against  the  mort- 
gagor.*^- Of  recent  years,  however,  statutes  have  been 
passed  in  many  states  authorizing  the  entry  in  the  fore- 
closure proceeding  of  a  personal  judgment  or  decree  for  the 
deficiency  against  the  mortgagor  or  other  person  liable  for 
the  debt  ;*^"  and  in  such  states  the  mortgagee  is  usually  sub- 
ject to  restrictions  of  a  more  or  less  positive  character  upon 
his  right  to  institute  separate  proceedings  to  enforce  the  per- 
sonal liability  and  to  foreclose.'*^^ 

*-•■!■  Globe  Ins.  Co.  v.  Lansing,  5  Cow.  (N.  Y.)  380,  15  Am.  Dec.  474; 
ftlorgan  v.  Sherwood,  53  111.  171;  Marston  v.  Marston,  45  Me.  412; 
Stark  V.  Mercer,  3  How.  (Miss.)  377;  Leland  v.  Loring,  10  Mete. 
(Mass.)  122;   Paris  v.  Hulett,  26  Vt.  308.     See,  also,  ante,  §  550. 

452  Hunt  V.  Lewis,  4  Stew.  &  P.  (Ala.)  138;  Johnson  v.  Shepard, 
35  Mich.  115:  Stark  v.  Mercer,  3  How.  (Miss.)  377;  Fithian  v. 
Monks,  43  Mo.  502,  519;  Klapworth  v.  Dressier,  13  N.  J.  Eq.  62,  78 
Am.  Dec.  69;  Dunkley  v.  Van  Buren,  3  Johns.  Ch.  (N.  Y.)  330. 

453  1  Stimson's  Am.  St.  Law,  §  1926;  9  Enc.  PI.  &  Pr.  454;  2  Jones, 
Mortgages,  c.  38. 

454  The  statute  sometimes  requires  the  mortgage  security  to  be  ex- 
hausted before  an  action  is  brought  to  enforce  the  personal  liability. 
See  Bartlett  v.  Cottle,  63  Cal.  366;  Johnson  v.  Lewis,  13  Minn.  364 
(Gil.  337).  In  some  states,  by  statute,  during  the  pendency  of  an 
action  at  law  for  the  recovery  of  the  debt,  a  foreclosure  suit  cannot 
be  maintained,  and  a  subsequent  foreclosure  suit  is  allowed  only 
if  execution  on  a  judgment  for  the  debt  is  returned  unsatisfied.  1 
Stimson's  Am.  St.  Law,  §  1932  (B).  In  other  states,  while  a  fore- 
closure suit  is  pending,  an  action  on  the  debt  cannot  be  brought  ex- 
cept by  leave  of  court.  1  Stimson's  Am.  St.  Law,  §  1932  (D).  And 
the  statute  sometimes  forbids  the  bringing  of  a  subsequent  action  on 
the  debt,  after  a  decree  of  foreclosure,  the  creditor  having  a  right  to  a 
personal  decree  in  the  foreclosure  proceeding.  Code  Civ.  Proc.  N.  Y. 
?  1628.  / 

(127Y) 


CHAPTER   XXXVI. 
EQUITABLE  LIENS. 

§  559.  General  considerations. 

560.  Express  charges  on  land. 

561.  Agreements  for  security  (equitable  mortgages). 

562.  Lien  for  improvements. 

563.  Lien  for  owelty  of  partition. 

564.  Implied  lien  of  grantor  (vendor's  lien). 

565.  Express  lien  of  grantor. 

566.  Vendor's  lien  before  conveyance. 

567.  Vendee's  lien. 

An  equitable  lien  is  a  right  in  equity  to  have  a  personal  claim 
paid,  in  case  of  necessity,  by  the  sale  of  specific  land.  It  may 
result  from:  (1)  An  express  charge  by  the  owner  of  the  land 
of  a  certain  sum  thereon.  (2)  An  agreement  that  the  land 
shall  be  security  for  a  certain  sum.  (3)  The  making  of  im- 
provements on  land  by  one  mistakenly  believing  himself  the 
owner  thereof.  (4)  The  creation  of  a  claim  for  owelty  of 
partition.  (5)  It  also  exists,  in  some  states,  upon  land  con- 
veyed to  secure  purchase  money  remaining  unpaid.  (6)  It 
may,  in  any  state,  be  created  for  this  purpose  by  agreement. 
(7)  It  also  exists  in  favor  of  a  vendee  to  secure  payments  made 
by  him  under  the  contract  before  receiving  a  conveyance. 

§  559.     General  considerations. 

At  common  law  there  was  no  lien  npon  a  tiling  (:)wneJ  liv 
one  person  in  favor  of  another  except  when  accompanied  by 
possession,  and,  furthermore,  there  could  be  no  lien  upon 
land,  but  only  on  things  of  a  personal  nature.^  In  equity, 
however,  there  are  certain  rights  in  regard  to  land,  as  well 

1  2  Spence,  Eq.  Jur.  796. 
(1278) 


Q^^  35J  EQUITABLE   LIENS.  ;;   5(,() 

ns  to  personalty,  not  based  on  possession,  yet  of  a  character 
analogons  to  common-law  liens,  and  known  as  '•equitable 
liens."  These  rights  consist  of  personal  obligations  upon  the 
owners  of  land,  which  equity  will  enforce  against  the  land, 
and  which  will  follow  the  land  into  whosesoever  hands  it  mav 
pass,  until  it  reaches  tliose  of  a  purchaser  for  value  Avithout 
notice.^ 

§  560.     Express  charges  on  land. 

An  "equitable  lien"  is  created  by  provisions,  in  a  convey- 
ance inter  vivos  or  in  a  will,  charging  the  land  with  the  pay- 
ment of  debts  or  legacies.^  So,  land  may  be  charged  by  will, 
or  in  a  family  settlement,  with  the  payment  of  an  annuity/ 
or  the  support  of  some  person  other  than  the  owner. ^ 

2Pomeroy,  Eq.  Jur.  §§  165-167,  1233  et  seq.;  article  by  Prof.  C.  C. 
Langdell,  1  Harv.  Law  Rev.  65,  66,  70. 

Equitable  liens  do  not  confer  "proprietary"  or  "real"  rights,  but, 
as  stated  in  the  text,  they  merely  constitute  a  means  by  which 
equity  enforces  a  personal  obligation.  Consequently,  the  owner  of 
the  obligation  has,  in  theory,  no  rights  in  the  land  until  the  decree 
subjecting  the  land  to  his  claim.  See  1  Harv.  Law  Rev.  65,  66;  Gil- 
man  V.  Brown,  1  Mason,  221,  Fed.  Cas.  No.  5,441;  Hutton  v.  Moore. 
26  Ark.  382;  Sparks  v.  Hess,  15  Cal.  186.  It  is  on  this  theory,  ap- 
parently, that  a  vendor's  lien  is  in  some  states  regarded  as  personal 
to  the  vendor,  and  not  assignable  (see  post,  §  564).  and,  on  the 
same  theory,  the  right  to  enforce  the  lien  may  well  be  regarded  as 
barred  by  the  fact  that  the  statutory  period  has  run  against  the 
claim  (Borst  v.  Corey,  15  N.  Y.  505.  Kirchwey's  Cas.  758).  whatevM' 
be  the  rule  in  the  case  of  a  formal  mortgage  (see  ante.  S  549). 

3  See  2  Jarman,  Wills,  1387  et  seq;  Bigelow,  Wills.  312.  Equitable 
liens  of  this  class,  as  well  as  other  such  liens,  are  admirably  treated 
in  the  work  on  Equity  Jurisprudence  by  the  late  John  Norton 
Pomeroy  (volume  3,  §§  1233-1267).  on  which  the  i)resent  chapter 
is,  to  a  considerable  extent,  based. 

4  In  re  Tucker  [1893]  2  Ch.  323;  Merritt  v.  Bucknam.  78  Me.  504; 
Gallaher  v.  Herbert,  117  111.  160;  Glenn  v.  Spry,  5  Md.  110;  Hines 
v.  Hines,  95  N.  C.  482;  In  re  Pierce's  Estate,  56  Wis.  560. 

5  Bell  v.  Watkins,  104  Ga.  345;  Donnelly  v.  Edelen,  40  Md.  117: 
Commons  v.  Commons,  115  Ind.  162;  Outland  v.  Outland.  118  N.  C. 
138;  Dickson  v.  Field,  77  Wis.  439. 

(1270) 


§    560  REAL  PROPERTY.  [Ch.  36 

Under  the  common-law  rule  that  lands  were  not  liable  for 
the  simple  contract  debts  of  a  decedent,  the  question  frequent- 
ly arose  whether  his  will  expressed  an  intention  to  the  con- 
trary,— that  is,  charg-ed  his  land  with  the  payment  of  debts  in 
favor  of  creditors.  With  the  change  in  the  law,  making  land 
as  well  as  personalty  liable  for  debts  of  the  decedent, — a  rule 
which  prevails  in  all  the  states, — these  questions  have  become 
of  comparatively  little  importance,  so  far  as  the  creditor  is 
concerned.  The  question  may  still  arise,  however,  whether, 
under  a  particular  will,  the  land  is  charged  with  debts,  so  as  to 
render  it  primarily  liable  for  the  payment  thereof,  thus  re- 
versing the  ordinary  rule  that  the  personalty  is  the  primary 
fund  for  that  purpose.  This  concerns,  not  the  creditor,  but 
the  devisees  or  heirs  of  the  land  on  the  one  side,  and  the  lega- 
tees or  other  persons  entitled  to  share  in  the  personalty  on  the 
other.  The  question  also  frequently  arises  whether  land  is 
charged  with  the  payment  of  a  particular  legacy,  so  as  to  make 
it  liable  for  this  purpose,  either  before  the  personalty,  which 
is  ordinarily  alone  so  liable,  or  pari  passu  with  the  personalty. 
In  the  absence  of  such  a  charge,  the  legacy  must  abate  in  case 
of  insufficiency  of  personal  assets. 

Since  land  is  ordinarily  the  primary  fund  for  the  payment 
of  both  debts  and  legacies,  the  presumption  is  always  to  that 
effect,  and  a  clear  intention  is  necessary  to  charge  the  land.*^ 
An  intention  that  the  land  shall  be  charged  with  the  payment 
of  debts  or  legacies  may  be  expressly  stated,  as  by  use  of  the 
word  "charge."  or  by  a  devise  to  A.  "on  condition  that"  he 
pay  a  certain  (lol)t  or  legacy.'      ^NForeover,  such  an  intention 

sBigelow.  Wills,  313;  Wright  v.  Denn,  10  Wheat.  (U.  S.)  204;  In 
re  Powers,  124  N.  Y.  361;  Heslop  v.  Gatton,  71  111.  528;  Owens  v. 
Claytor,  56  Md.  129;  Shenk  v.  Shenk,  150  Pa.  St.  521;  Lee  v.  Lee, 
88  Va.  805. 

TMcFait'B  Appeal,  8  Pa.  St.  290;  Merritt  v.  Buckman,  78  Me.  504; 
Gardenville  Permanent  Loan  Ass'n  v.  Walker,  52  Md.  452;   Sistrunk 
v.  Ware,  69  Ala.  273 ;  Couch  v.  Eastham,  29  W.  Va.  784.     See  Baker's 
Appeal,  59  Pa.  St.  313. 
(1280) 


Ch.    36]  EQUITABLE   LIENS.  §   560 

is  usually  inferred  fi'om  the  fact  that,  in  the  same  clause  with 
a  devise  of  land,  there  is  a  direction  to  the  devisee  to  pay  a 
debt  or  a  legacy.^ 

In  this  country  the  use  of  general  words  directing  the  pay- 
ment of  debts  does  not  usually  have  the  effect  of  charging  the 
debts  on  land  devised,  such  words  being  found  in  most  wills, 
and  being  merely  a  direction  for  the  doing  of  what  the  law 
compels.^  In  England,  on  the  other  hand,  a  mere  direction 
by  the  testator  that  his  debts  shall  be  paid  charges  the  land 
with  the  debts,  though  a  direction  that  they  shall  be  paid  by 
his  executors  charges  only  the  land  devised  to  such  execu- 
tors.i" 

A  legacy  is  charged  on  land  by  a  devise  of  the  land  "after'' 
the  payment  of  such  legacy.-^ -^  Likewise,  if,  after  the  gift  of 
a  pecuniary  legacy  or  legacies,  there  is  a  gift  of  the  "resi- 
due" or  "remainder"  of  testator's  property,  thereby  blending 
the  real  and  personal  property  into  one  fund,  the  legacy  or 
legacies  are  charged  upon  the  land,  since  the  term  "residue" 
or  "remainder"  could  in  such  case  only  refer  to  what  remains 
after  the  payment  of  the  previous  gifts.^" 

sBigelow,  Wills,  318;  Potter  v.  Gardner,  12  Wheat.  (U.  S.)  498; 
Brown  v.  Knapp,  79  N.  Y.  136,  143;  Henry  v.  Griffis,  89  Iowa,  543; 
Thayer  v.  Finnegan,  134  Mass.  62,  45  Am.  Rep.  285;  Merrill  v.  Bick- 
ford,  65  Me.  118;  Dudgeon  v.  Dudgeon,  87  Mo.  218;  Chase  v.  War- 
ner, 106  Mich.  695;  Carter  v.  Worrell,  96  N.  C.  358,  60  Am.  Rep.  420; 
Yearly  v.  Long,  40  Ohio  St.  27;  Buchanan  v.  Lloyd,  88  Md.  642; 
Wyckoff  V.  Wyckoff,  49  N.  J.  Eq.  344. 

9  Starke  v.  Wilson,  65  Ala.  576;  Decker  v.  Decker,  121  111.  341; 
Hamilton  v.  Smith,  110  N.  Y.  159;  Harmon  v.  Smith  (C.  C.)  38  Fed. 
482;  White  v.  Kauffman,  66  Md.  92.  Contra,  Tuohy  v.  Martin,  2 
MacArthur  (D.  C.)  572;  Bishop  v.  Howarth,  59  Conn.  455,  465. 

10  2  Jarman,  Wills,  1390;  Theobald,  Wills  (5th  Ed.)  725,  726;  Haw- 
kins, Wills   (2d  Am.  Ed.)   282. 

11  Pond  V.  Allen,  15  R.  I.  171;  Pendleton  v.  Kinney,  65  Conn.  222; 
Smith  V.  Cairns,  92  Tex.  667.     See  Smith  v.  Fellows,  131  Mass.  20. 

i2Greville  v.  Browne,  7  H.  L.  Cas.  689;  In  re  Dyson  [1896]  2  Ch. 
720;  Lewis  v.  Darling,  16  How.  (U.  S.)  1;  Turner  v.  Laird,  68  Conn. 

(1281) 
Real  Prop.— 81. 


§   561  REAL  PROPERTY.  [Ch.  36 

I  561.    Agreements  for  security  (equitable  mortgages). 

In  equity,  any  agreement  in  writing,  made  upon  a  valid 
consideration,  however  informal,  by  whicii  an  intention  is 
shown  that  certain  land  shall  be  a  security  for  the  payment 
of  money,  creates  an  equitable  lien  upon  that  land.^^  To 
such  an  agreement  the  term  "equitable  mortgage"  is  frequent- 
ly applied,  the  instrument  being,  for  most  purposes,  at  least, 
equivalent  to  a  regular  mortgage  in  the  view  of  a  court  of 
equity,  though  utterly  null  and  void  at  law.  Accordingly, 
one  may  create  an  equitable  lien  on  land  by  an  agreement  in 
terms  pledging  or  giving  a  lien  on  the  land,^*  and  may,  hj 
a  mere  indorsement  on  a  note  to  the  effect  that  it  is  a  charge 
■on  land,  make  it  such  in  legal  effect.^ ^  So,  a  power  of  at- 
torney authorizing  one  to  collect  the  rents  of  land  belonging 
to  the  donor  of  the  power,  and  to  apply  them  on  a  debt,  or 
for  other  specific  purposes,  has  been  regarded  as  creating  an 
equitable  lien  on  the  land;^*^  as  has  an  agreement  that  a  cer- 

198;  Stevens  v.  Flower,  46  N.  J.  Eq.  340;  Reid  v.  Corrigan,  143  111. 
402;  Hutchinson  v.  Gilbert,  86  Tenn.  464;  Hill  v.  Bean,  86  Me.  200; 
Peebles  v.  Acker,  70  Miss.  356;  Bennett's  Estate,  148  Pa.  St.  139.  See 
Lee  V.  Lee,  88  Va.  805;  Hoyt  v.  Hoyt,  85  N.  Y.  142.  In  one  or  two 
states,  however,  such  a  disposition  of  testator's  property  is  regarded 
as  insufficient  to  show  an  intention  to  charge  the  land  when  unac- 
companied by  other  evidence  of  such  an  intention.  Pearson  v.  Wart- 
man,  80  Md.  528;  Brill  v.  Wright,  112  N.  Y.  129;  Morris  v.  Sickly, 
133  N.  Y.  456. 

13  3  Pomeroy,  Eq.  Jur.  §  1237;  Walker  v.  Brown,  165  U.  S.  654; 
Ketchum  v.  St.  Louis,  101  U.  S.  306;  Donald  v.  Hewitt,  33  Ala.  534, 
73  Am.  Dec.  431;  Bell  v.  Pelt,  51  Ark.  433,  14  Am.  St.  Rep.  57;  Love 
V.  Sierra  Nevada  Lake  Water  &  Min.  Co.,  32  Cal.  639,  91  Am.  Dec. 
602;  Cotterell  v.  Long,  20  Ohio,  464;  Pinch  v.  Anthony,  8  Allen 
(Mass.)  536;  Cummings  v.  Jackson,  55  N.  J.  Eq.  805;  Wayt  v.  Car- 
withen,  21  W.  Va.  516.  See  Perry  v.  Board  of  Missions  of  Protestant 
Episcopal  Church,  102  N.  Y.  99,  Kirchwey's  Cas.  135. 

14  Chase  v.  Peck,  21  N.  Y.  581. 

15  Peckham  v.  Haddock,  36  111.  38. 

16  Joseph  Smith  Co.  v.  McGuinness,  14  R.  I.  59;  Spooner  v.  Sandi- 
lands,  1  Younge  &  C.  390;  Cradock  v.  Scottish  Provident  Institution, 

(1282) 


Ch.  36]  EQUITABLE   LIENS.  §   561 

tain  debt  shall  be  paid  out  of  the  price  to  be  paid  for  certain 
land.i^ 

An  assignment,  for  purposes  of  security,  by  a  vendee  of 
land,  of  his  contract  rights  in  the  land,  is  regarded  as  creating 
a  lien  on  the  land,  or,  rather,  on  his  equitable  interest  in  the 
land.^^  Likewise,  when  one  who  furnishes  the  money  for 
the  purchase  of  land  by  another,  by  agreement  with  the  latter, 
takes  the  title  from  the  vendor,  to  hold  until  his  advance  is 
repaid,  he  has  an  equitable  lien  to  secure  such  repayment.^® 

An  agreement  to  give  a  mortgage  on  land  is  also  regarded 
in  equity  as  creating  a  lien  on  the  land,  on  the  principle  that 
equity  regards  that  as  done  which  ought  to  be  done.^*^ 

An  important  application  of  the  principle  that  equity  will 
carry  out  the  intention  to  give  a  security  is  seen  in  the  case 

63  Law  J.  Ch.  15;  Abbott  v.  Straiten,  3  Jones  &  L.  603.  A  power  to 
sell  land  and  apply  the  proceeds  on  a  debt  has  also  been  regarded  as 
creating  such  a  lien.  American  Loan  &  Trust  Co.  v.  Billings,  58 
Minn.  187. 

17  Johnson  v.  Johnson,  40  Md.  189;  Pinch  v.  Anthony,  8  Allen 
(Mass.)  536. 

18  Hays  V.  Hall,  4  Port.  (Ala.)  374,  30  Am.  Dec.  530;  Gamble  v. 
Ross,  88  Mich.  315;  Russell's  Appeal,  15  Pa.  St.  319;  Hackett  v. 
Watts,  138  Mo.  502. 

19  Union  Mut.  Life  Ins.  Co.  v.  Slee,  123  111.  57;  Dryden  v.  Hanway, 
31  Md.  254;   Barnett  v.  Nelson,  46  Iowa,  495. 

20  Bridgeport  Electric  &  Ice  Co.  v.  Meader  (C.  C.  A.)  72  Fed.  115; 
Sprague  v.  Cochran,  144  N.  Y.  104;  In  re  Petition  of  Howe,  1  Paige 
(N.  Y.)  125,  19  Am.  Dec.  395;  Remington  v.  Higgins,  54  Cal.  620; 
Carter  v.  Holman,  60  Mo.  498. 

The  term  "equitable  mortgage"  might  well  be  restricted  to  these 
cases  of  equitable  liens  arising  from  a  contract  to  make  a  legal  mort- 
gage, since  in  such  a  case  there  is  a  right  to  have  the  contract  specif- 
ically performed  by  the  execution  of  a  legal  mortgage,  in  which  re- 
spect this  class  of  equitable  liens  differs  from  the  other  classes  de- 
scribed in  this  chapter.  Marshall  v.  Shrewsbury,  10  Ch.  App.  250, 
254;  Matthews  v.  Goodday,  31  Law  J.  Ch.  282.  In  this  country, 
however,  where  a  legal  mortgage  is  foreclosed  usually  by  sale,  and 
not  by  a  decree  of  strict  foreclosure,  there  would  be  no  great  ad- 
vantage in  exchanging  such  an  equitable  lien  for  a  legal  mortgage. 

(1283) 


§   561  REAL  PROPERTY.  [Ch.  3(> 

of  an  instrument  intended  as  a  valid  and  legal  mortgage, 
which,  though  insufficient  as  such,  owing  to  some  defect  of 
form  or  execution,  will,  in  equity,  be  regarded  as  creating  a 
lien  or  "equitable  mortgage."^^  Such  a  case  arises  when  the 
mortgage  is  without  the  proper  seal,^^  or  is  not  witnessed  as 
required  by  the  statute.^^ 

In  order  that  an  equitable  lien  be  thus  created  on  land  by 
agreement,  it  is  necessary  that  the  land  itself  be  specified  in 
the  instrument  creating  the  lien,^^  and  that  the  intention 
clearly  appear  that  the  land  is  to  be  security  for  the  per- 
formance of  the  obligation. ^^ 

By  deposit  of  title  deeds. 


In  England  it  is  a  well-established  doctrine  that,  if  the  title 
deeds  to  land  are  deposited  by  a  debtor  with  his  creditor,  such 
deposit  is  evidence  of  an  agreement  to  create  a  charge  on  the 
land,  which  equity  will  enforce.^®  The  deposit  of  the  deeds 
does  not  itself  create  a  charge,  but  is  merely  evidence,  with 

21  Burgh  V.  Francis,  Finch,  28,  Kirchwey's  Cas.  24;  Love. v.  Sierra 
Nevada  Lake  Water  &  Min.  Co.,  32  Cal.  639,  91  Am.  Dec.  602;  Peers 
V.  McLaughlin,  88  Cal.  294,  22  Am.  St.  Rep.  306;  Price  v.  McDonald, 
1  Md.  414,  54  Am.  Dec.  657;  McQuie  v.  Peay,  58  Mo.  58;  Gale  v.  Mor- 
ris, 30  N.  J.  Eq.  285;  Sprague  v.  Cochran,  144  N.  Y.  104;  Bank  ot 
Muskingum  v.  Carpenter's  Adm'rs,  7  Ohio,  21,  28  Am.  Dec.  616;  De- 
laire  v.  Keenan,  3  Desaus.   (S.  C.)   74,  4  Am.  Dec.  604. 

22  Sanders  v.  McDonald,  63  Md.  503;  Bullock  v.  Whipp,  15  R.  L 
195;  McClurg  v.  Phillips,  49  Mo.  315. 

23  Moore  v.  Thomas,  1  Or.  201. 

24Mornington  v.  Keane,  2  De  Gex  &  J.  292;  Borden  v.  Croak,  131 
111.  68,  19  Am.  St.  Rep.  23;  Adams  v.  Johnson,  41  Miss.  258;  Lee  v. 
Cole,  17  Or.  559. 

25  Mornington  v.  Keane,  2  De  Gex  &  J.  292;  Bowen  v.  McCarthy, 
127  111.  17;  Falmouth  Nat.  Bank  v.  Cape  Cod  Ship  Canal  Co.,  166 
Mass.  550;  Hossack  v.  Graham,  20  Wash.  184;  Knott  v.  Shepherds- 
town  Mfg.  Co.,  30  W.  Va.  790. 

26  Story,  Eq.  Jur.  §  1020;  Russel  v.  Russel,  1  Brown  Ch.  269,  1 
White  &  T.  Lead.  Cas.  Eq.  931,  Kirchwey's  Cas.  110. 

(1284) 


Ch.   36]  EQUITABLE  LIENS.  §   561 

other  circumstances,  of  an  intention  to  create  one,^'^  and  is 
regarded  as  a  part  performance  taking  the  agreement  out  of 
the  Statute  of  Frauds.^^ 

A  lien  of  this  character  has  been  recognized  in  a  number 
of  judicial  opinions  in  this  country,  usually,  however,  in  cases 
not  directly  involving  the  validity  of  such  a  lien.^^  In  oth- 
ers, such  a  deposit  is  not  regarded  as  creating  a  lien,  on  the 
ground  that  the  contrary  view  is  inconsistent  with  the  sys- 
tem of  conveyancing  and  registration  in  force  in  this  coun- 
try, and  also  involves  a  violation  of  the  Statute  of  Frauds.^" 

It  would  seem  that,  as  between  the  original  parties,  and 
as  against  purchasers  with  notice,  the  only  possible  objection 
to  an  agreement  for  a  lien  evidenced  by  such  a  deposit  of  title 
deeds  lies  in  the  fact  that  it  is  not  evidenced  by  a  writing 
complying  with  the  Statute  of  Frauds.  If  an  agreement  for 
a  lien  is  so  evidenced,  the  fact  that  there  is  a  simultaneous 
deposit  of  title  deeds  does  not  affect  the  validity  of  the  agree- 
ment as  creating  a  lien;  and  the  English  cases  merely  take 
the  further  step  of  regarding  the  deposit  as  sufficient  part  per- 
formance to  take  the  agreement  out  of  the  statute. 

27  Norris  v.  Wilkinson,  12  Ves.  192;  Chapman  v.  Chapman,  18 
Beav.  308;  Ashburner,  Mortgages,  26.  Consequently,  a  deposit  mere- 
ly to  enable  the  lender  to  prepare  a  regular  mortgage  is  not  suflBcient 
to  create  a  lien.  Norris  v.  Wilkinson,  12  Ves.  192;  Lloyd  v.  Attwood, 
3  De  Gex  &  J.  614,  651;  Hutzler  v.  Philips,  26  S.  C.  136,  4  Am.  St. 
Rep.  687. 

28  Russel  V.  Russel,  1  Brown  Ch.  269,  Kirchwey's  Cas.  110. 

29  Richards  v.  Leaming,  27  111.  431;  Hall  v.  McDuff,  24  Me.  311; 
Gale's  Ex'rs  v.  Morris,  29  N.  J.  Eq.  224;  Rockwell  v.  Hobby,  2  Sandf. 
Ch.  (N.  Y.)  9;  Chase  v.  Peck,  21  N.  Y.  584,  Kirchwey's  Cas.  124; 
Carpenter  v.  Black  Hawk  Gold  Min.  Co.,  65  N.  Y.  43,  51;  Hackett  v. 
Reynolds,  4  R.  I.  512;  Hutzler  v.  Phillips,  26  S.  C.  137,  4  Am.  St. 
Rep.  687;  Jarvis  v.  Dutcher,  16  Wis.  307. 

30  Lehman  v.  Collins,  69  Ala.  127;  Vanmeter  v.  McFaddin,  8  B. 
Mon.  (Ky.)  437;  Gardner  v.  McClure,  6  Minn.  250  (Gil.  167);  Hack- 
ett V.  Watts,  138  Mo.  502;  Bloomfield  State  Bank  v.  Miller,  55  Neb. 
243;  Shitz  v.  Diffenbach,  3  Pa.  St.  233;  Meador  v.  Meador,  3  Heisk. 
(Tenn.)  562. 

(1285) 


§   562  REAL  PROPERTY.  [Ch.  36 

§  562.     Lien  for  improvements. 

As  before  stated,  one  who  makes  improvements  on  land  in 
the  mistaken  belief  that  he  is  the  owner  thereof  is  given,  by 
equity,  a  right  to  compensation  for  such  improvements  as 
against  the  true  owner  coming  into  equity  to  assert  his 
rights,^ ^  and  this  right  to  compensation  is  regarded  as  consti- 
tuting a  lien  on  the  land.^^ 

An  owner  of  an  undivided  interest  in  land  who  is  entitled 
to  contribution  from  his  cotenants  on  account  of  repairs  or 
improvements  made  by  him  has  a  lien  on  their  interests  to  se- 
cure such  contribution.^^  Likewise,  a  life  tenant  under  a 
will  who  completes  improvements  begun  by  his  testator  is  en- 
titled to  compensation  therefor,  and  a  lien  to  secure  such  com- 
pensation.^^ 

According  to  a  few  decisions,  a  tenant  under  a  lease  provid- 
ing that  he  shall  be  compensated,  at  the  end  of  the  term,  for 
any  improvements  made  by  him,  has  a  lien  on  the  land  for  the 
value  of  such  improvements.^^  Usually,  however,  his  right 
to  a  lien  is  denied.^' 

31  See  ante,  §  241. 

32  Hannibal  &  St.  J.  R.  Cc.  v.  Shortridge,  86  Mo.  662;  Hatcher  v. 
Briggs,  6  Or.  31;  Field  v.  Moody,  111  N.  C.  353;  Preston  v.  Brown,  35 
Ohio  St.  18;  2  Story,  Bq.  Jur.  §  1237;  3  Pomeroy,  Bq.  Jur.  §  1241. 

83Baird  v.  Jackson,  98  111.  78;  Prentice  v.  Janssen,  79  N.  Y.  478; 
Alexander  v.  Ellison,  79  Ky.  148;  Kelly  v.  Kelly,  54  Mich.  30;  3  Pom- 
roy,  Bq.  Jur.  §  1240.     See  Houston  v.  McCluney,  8  W.  Va.  135. 

34  Hibbert  v.  Cooke,  1  Sim.  &  S.  552 ;  Sohier  v.  Bldredge,  103  Mass. 
345,  351;  Broyles  v.  Waddel,  11  Heisk.  (Tenn.)  32;  Gavin  v.  Carl- 
ing,  55  Md.  530;  2  Story,  Bq.  Jur.  §  1237. 

35  Berry  v.  Van  Winkle's  Ex'rs,  2  N.  J.  Bq.  269;  Conover  v.  Smith, 
17  N.  J.  Bq.  51,  86  Am.  Dec.  247;  Bcke  v.  Fetzer,  65  Wis.  55. 

36  Gardner  v.  Samuels,  116  Cal.  84,  58  Am.  St.  Rep.  135;  Beck  v. 
Birdsall,  19  Kan.  550;  Watson  v.  Gardner,  119  111.  312;  Coffin  v. 
Talman,  8  N.  Y.  465;  Hite  v.  Parks,  2  Tenn.  Ch.  373.  See  Speers  v. 
Flack,  34  Mo.  101,  84  Am.  Dec.  74. 

(1286) 


Ch.  36]  EQUITABLE  LIENS.  §    554 

§  563.     Lien  for  owelty  of  partition. 

When,  by  a  decree  for  the  partition  of  land,  one  of  the  par- 
ties is  directed  to  pay  to  another  a  certain  sum  for  "owelty 
of  partition, "^'^  the  property  received  by  him  on  the  partition 
is  subject  to  a  lien  for  such  sum  until  paid.^** 

§  564.     Implied  lien  of  grantor  (vendor's  lien). 

Upon  the  conveyance  of  land,  a  lien  on  the  land  is,  in  Eng- 
land and  a  number  of  the  states  of  this  country,  raised  by  im- 
plication of  law  in  favor  of  the  vendor  for  the  purchase  price, 
so  far  as  this  remains  unpaid. ^^  In  other  jurisidictions,  how- 
ever, the  existence  of  the  lien  is  denied.'**'     In  the  United 

37  See  ante,  §  175. 

3s  Freeman,  Cotenancy,  §  507;  Davis  v.  Norris,  8  Pa.  St.  125;  Mc- 
Candless'  Appeal,  98  Pa.  St.  489;  Baltimore  &  O.  R.  Co.  v.  Trimble, 
51  Md.  99;  Dobbin  v.  Rex,  106  N.  C.  444;  Jameson  v.  Rixey,  94  Va. 
342,  64  Am.  St.  Rep.  726. 

39Mackreth  v.  Symmons,  15  Ves.  329,  1  White  &  T.  Lead.  Cas. 
Eq.  447;  Crampton  v.  Prince,  83  Ala.  246,  3  Am.  St.  Rep.  718; 
Shall  V.  Biscoe,  18  Ark.  142;  Salmon  v.  Hoffman,  2  Cal.  138,  56  Am. 
Dec.  322;  Avery  v.  Clark,  87  Cal.  619,  22  Am.  St.  Rep.  272;  Trustees 
of  Schools  V.  Wright,  11  111.  603;  Fouch  v.  Wilson,  60  Ind.  64,  28  Am. 
Rep.  651;  Kendrick  v.  Eggleston,  56  Iowa,  128,  41  Am.  Rep.  90; 
Magruder  v.  Peter,  11  Gill  &  J.  (Md.)  217;  Carr  v.  Hobbs,  11  Md. 
285;  Peters  v.  Tunell,  43  Minn.  473,  19  Am.  St.  Rep.  252;  Marsh  v. 
Turner,  4  Mo.  253;  Corlies  v.  Rowland,  26  N.  J.  Eq.  311;  Seymour 
v.  McKinstry,  106  N.  Y.  230;  Anketel  v.  Converse,  17  Ohio  St.  11,  91 
Am.  Dec.  115;  Gee  v.  McMillan,  14  Or.  268,  58  Am.  Rep.  315;  Kent  v. 
Gerhard,  12  R.  I.  92,  34  Am.  Rep.  612;  Marshall  v.  Christmas,  3 
Humph.  (Tenn.)  616,  39  Am.  Dec.  199;  Howe  v.  Harding,  76  Tex.  17, 
18  Am.  St.  Rep.  17;  Madden  v.  Barnes,  45  Wis.  135,  30  Am.  Rep.  703. 

40  Simpson  v.  Mundee,  3  Kan.  172 ;  Atwood  v.  Vincent,  17  Conn. 
575;  Philtarook  v.  Delano,  29  Me.  410;  Ahrend  v.  Odiorne,  118  Mass. 
261,  19  Am.  Rep.  449,  Kirchwey's  Cas.  131;  Ansley  v.  Pasahro,  22 
Neb.  662;  Womble  v.  Battle,  38  N.  C.  182;  Kauffelt  v.  Bower,  7  Serg. 
&  R.  (Pa.)  64,  10  Am.  Dec.  428;  Hiester  v.  Green,  48  Pa.  St.  96.  86 
Am.  Dec.  569;  Wragg's  Representatives  v.  Comptroller-General,  2 
Desaus.  (S.  C.)  520.     See  Arlin  v.  Brown,  44  N.  H.  102. 

In  Georgia,  Vermont,  Virginia,  and  West  Virginia  it  has  been 
abolished  by  statute.     1  Stimson's  Am.  St.  Law,  §  1950. 

(1287) 


§   564  REAL  PROPERTY.  [Ch.  36 

States  courts  the  lien  is  regarded  as  existing  in  a  particular 
state  only  when  it  is  recognized  by  the  laws  or  courts  of  such 
state.^^  Even  in  those  states  where  the  lien  is  recognized, 
it  is  not  favored  by  the  courts,  it  being  regarded  as  inconsist- 
ent with  the  policy  of  the  registration  laws,  which  is  adverse 
to  secret  equities,  and  the  vendor  being  in  a  position,  by  a 
mortgage  or  express  reservation  of  a  lien,  to  protect  his  in- 
terests otherwise.^^ 

The  lien  does  not  exist  unless  the  amount  to  be  secured 
thereby  is  capable  of  exact  ascertainment,  and  consequently 
it  will  not  arise  in  the  case  of  an  unliquidated  claim,^^  as 
when  the  consideration  for  the  conveyance  is  the  vendee's 

4iBayley  v.  Greenleaf,  7  Wheat.  (U.  S.)  46;  Chilton  v.  Braiden's 
Adm'x,  2  Bl^ck  (U.  S.)  458;  Cordova  v.  Hood,  17  Wall.  (U.  S.)  1; 
Rice  V.  Rice  (C.  C)   36  Fed.  860. 

42  Various  explanations  of  the  origin  and  basis  of  the  doctrine  of 
the  lien  are  given.  Thus,  it  is  said  to  rest  on  "natural  equity"  (4 
Kent's  Comm.  152);  an  implied  trust  in  favor  of  the  vendor  (Mack- 
reth  V.  Symmons,  15  Ves.  329;  2  Story,  Eq.  Jur.  §  1217;  Blackburn 
V.  Gregson,  1  Brown  Ch.  420.  Contra,  3  Pomeroy,  Eq.  Jur.  §  1250, 
note;  Ahrend  v.  Odiorne,  118  Mass.  264,  19  Am.  Rep.  449,  Kirchwey's 
Cas.  131) ;  and  the  desire  of  chancery,  in  the  time  when  land  could 
not  be  subjected  to  a  debt,  to  evolve  some  device  by  which  land  could 
be  made  liable  in  the  hands  of  the  purchaser  for  the  unpaid  price 
(notes  to  Mackreth  v.  Symmons,  1  White  &  T.  Lead.  Cas.  Eq.  500: 
Gray,  C.  J.,  in  Ahrend  v.  Odiorne,  118  Mass.  261,  19  Am.  Rep.  449, 
Kirchwey's  Cas.  131.  Contra,  3  Pomeroy,  Eq.  Jur.  §  1250).  Mr. 
Pomeroy  considers  that  it  is  merely  the  application  of  a  general 
judicial  conception  that  the  thing  sold  constitutes,  to  some  extent 
at  least,  a  fund  for  the  payment  of  the  price,  a  conception  which 
was  not  applied  to  chattels  because  they  were  of  less  importance 
than  land,  and,  furthermore,  were  articles  of  commerce,  the  transfer 
of  which  it  was  undesirable  in  any  way  to  hamper.  See  3  Pomeroy, 
Eq.  Jur.  §  1250. 

•43  Harris  v.  Hanie,  37  Ark.  348;  Peters  v.  Tunell,  43  Minn.  473,  19 
Am.  St.  Rep.  252;  Payne  v.  Avery,  21  Mich.  524;  Hiscock  v.  Norton, 
42  Mich.  320;  Arlin  v.  Brown,  44  N.  H.  102;  Brawley  v.  Catron,  8 
Leigh  (Va.)   522;  Chapman  v.  Beardsley,  31  Conn.  115. 

(V2SS) 


Cil.  36]  EQUITABLE  LIENS.  §   564 

agreement  to  support  the  vendor  during  his  life,*"*  nor  when 
there  is  a  sale  of  land  and  personalty  together,  and  it  does  not 
appear  what  part  of  the  consideration  is  to  be  paid  for  each.^^ 
Nor  is  the  lien  available  for  the  enforcement  of  collateral 
agreements  by  the  vendee,  as  to  assume  incumbrances,  or  to 
erect  buildings.^*^ 

Persons  affected  by  the  lien. 


The  lien  binds  the  land  in  the  hands  of  the  heirs  and  devi- 
sees of  the  vendee,^^  and  is  effective  as  against  all  persons 
other  than  purchasers  for  value,"*^  including  the  widow  of  the 
vendee  claiming  dower  in  the  land.^^  Purchasers  of  the 
land  for  value  also  take  it  subject  to  the  lien  if  they  have  no- 
tice, actual  or  constructive,  of  its  existence,  and  not  other- 
wise.^*^ Knowledge  on  the  part  of  a  purchaser  from  the  ven- 
dee that  the  purchase  price  is  still  unpaid,  in  whole  or  in 

44  Arlin  v.  Brown,  44  N.  H.  102;  Brawley  v.  Catron,  8  Leigh  (Va.) 
522.     Compare  Chase  v.  Peck,  21  N.  Y.  581. 

45  Stringfellow  v.  Ivie,  73  Ala.  209;  McCandlish  v.  Keen,  13  Grat. 
(Va.)   615,  629;   Peters  v.  Tunell,  43  Minn.  473,  19  Am.  St.  Rep.  252. 

46  McDonald  v.  Elyton  Land  Co.,  78  Ala.  382;  Patterson  v.  Ed- 
wards, 29  Miss.  67;  Clarke  v.  Royle,  3  Sim.  499. 

47  Edmonson  v.  Phillips,  73  Mo.  57;  Pintard  v.  Goodloe,  Hempst. 
502,  Fed.  Cas.  No.  11,171;   Solomon  v.  Skinner,  82  Tex.  345. 

48  Pylant  V.  Reeves,  53  Ala.  132,  25  Am.  Rep.  605;  Higgins  v.  Ken- 
dall, 73  Ind.  522;  Acton  v.  Waddington,  46  N.  J.  Eq.  16;  Beal  v. 
Harrington,  116  111.  113;  Christopher  v.  Christopher,  64  Md.  583; 
Thomas  v.  Bridges,  73  Mo.  530. 

49  Thorn  v.  Ingram,  25  Ark.  52;  Noyes  v.  Kramer,  54  Iowa,  22; 
McClure  v.  Harris,  12  B.  Mon.  (Ky.)  261;  Miller  v.  Stump,  3  Gill 
(Md.)  304;  Warner  v.  Van  Alstyne,  3  Paige  (N.  Y.)  513;  Walton 
V.  Hargroves.  42  Miss.  18,  97  Am.  Dec.  429;  Martin  v.  Smith,  25  W. 
Va.  579. 

BO  4  Kent's  Comm.  153;  Bay  ley  v.  Greenleaf,  7  Wheat.  (U.  S.)  46; 
Craft  V.  Russell,  67  Ala.  9;  Koch  v.  Roth,  150  111.  212;  Hawes  v. 
Chaille,  129  Ind.  435;  Walton  v.  Hargroves,  42  Miss.  18,  97  Am.  Dec. 
429;  Dance  v.  Dance,  56  Md.  433;  Seymour  v.  McKinstry,  106  N.  Y. 
230;  Lewis  v.  Henderson,  22  Or.  548;  Poe  v.  Paxton's  Heirs,  26  W. 
Va.  607. 

(1289) 


§   564  REAL  PROPERTY.  [Qh.   36 

part,  is  sufficient  to  charge  him  with  notice  of  the  lien;*^' 
as  when  there  is  a  recital  in  the  original  conveyance  to  the 
vendee  that  the  purchase  price  is  unpaid.^^ 


Transfer  of  the  lien. 


In  some  jurisdictions  the  lien  may  be  assigned  by  the  ven- 
dor along  with  the  claim  for  purchase  money,^^  and  an  assign- 
ment of  the  claim  for  purchase  money  is  regarded  as  trans- 
ferring the  lien,  as  merely  accessory  thereto.^^  And  in  such 
states  the  principle  of  subrogation  or  "equitable  assignment" 
may  be  applied,  as  in  the  case  of  mortgages,  in  favor  of  one 
who  is  forced  to  pay  off  the  lien  to  protect  himself,  he  being 
thereupon  substituted  in  the  place  of  the  vendor  as  regards 
the  lien  rights.^^  In  a  majority  of  the  states,  however,  in 
which  the  lien  is  recognized,  it  is  regarded  as  personal  to  the 
vendor,  and  not  capable  of  transfer.^^ 

On  the  death  of  the  person  entitled  to  enforce  the  lien,  the 

eiSwan  v.  Benson,  31  Ark.  728;  Woodall  v.  Kelly,  85  Ala.  368,  7 
Am.  St.  Rep.  57;  Manly  v.  Slason,  21  Vt.  271,  52  Am.  Dec.  60. 

52  Cordova  v.  Hood,  17  Wall.  (U.  S.)  1;  Melross  v.  Scott,  18  Ind. 
250;  Kilpatrick  v.  Kilpatrick,  23  Miss.  124,  55  Am.  Dec.  79;  McAlpine 
V.  Burnett,  23  Tex.  649. 

ssLagow  V.  Badollet,  1  Blaekf.  (Ind.)  416,  12  Am.  Dec.  258;  Plow- 
man V.  Riddle,  14  Ala.  169,  48  Am.  Dec.  92;  Johnston  v.  Gwathmey, 
4  Litt.  (Ky.)  317,  14  Am.  Dec.  135;  Sloan  v.  Campbell,  71  Mo.  387,  36 
Am.  Rep.  493. 

54  Griffin  v.  Camack,  36  Ala.  695,  76  Am.  Dec.  344;  Kern  v.  Hazle- 
rigg,  11  Ind.  443,  71  Am.  Dec.  360;  Sloan  v.  Campbell,  71  Mo.  387,  36 
Am.  Rep.  493;  White  v.  Downs,  40  Tex.  225. 

55  Thomas  v.  Bridges.  73  Mo.  530;  Otis  v.  Gregory,  111  Ind.  504; 
Rodman  v.  Saunders,  44  Ark.  504;  Oury  v.  Saunders,  77  Tex.  278; 
Carey  v.  Boyle,  53  Wis.  574. 

56  Hecht  V.  Spears,  27  Ark.  229,  11  Am.  Rep.  784;  Baum  v.  Grigsby, 
21  Cal.  172,  81  Am.  Dec.  153;  First  Nat.  Bank  of  Salem  v.  Salem 
Central  Flour-Mills  Co.  (C.  C.)  39  Fed.  89;  Wellborn  v.  Williams, 
9  Ga.  86,  52  Am.  Dec.  427;  Richards  v.  Leaming,  27  111.  431,  81  Am. 
Dec.  239;  Hammons  v.  Peyton,  34  Minn.  529;  White  v.  Williams,  1 
Paige  (N.  Y.)   502. 

(1290) 


Q\y^   36]  EQUITABLE  LIENS.  §   564 

right  passes,  with  the  claim  for  the  purchase  price,  to  his  per- 
sonal representatives.'^'^ 

Waiver. 

The  vendor's  lien  may  be  waived,  either  expressly  or  by 
implication.^^  What  constitutes  a  waiver  by  implication  has 
been  much  discussed,  and  it  is  generally  agreed  that  a  waiver 
is  not  shown  by  the  fact  that  the  vendor  takes  the  personal 
obligation  of  the  vendee,  such  as  his  bond  or  note,  for  the  un- 
paid purchase  price ;  this  being  considered  as  merely  intended 
to  countervail  the  acknowledgment  in  the  deed  of  the  pay- 
ment of  the  purchase  money,  or  to  show  the  time  and  manner 
in  which  the  payment  is  to  be  made.^^  But  the  taking  of  the 
personal  obligation  of  a  person  other  than  the  vendee,  by  way 
of  indorsement,  guaranty,  or  otherwise,  is  usually  regarded 
as  a  waiver ;®°  and  the  same  effect  is  given  to  the  taking  of 
security,  such  as  a  mortgage,  on  the  land  itself  or  on  other 
property.^^     Taking  independent  security,  however,  merely 

B7  2  Story,  Eq.  Jur.  §  1227;  Robinson  v.  Appleton,  124  111.  276; 
Evans  v.  Enloe,  70  Wis.  345.     See  Leeper  v.  Lyon,  68  Mo.  216. 

58  4  Kent's  Comm.  152;  Bayley  v.  Greenleaf,  7  Wheat.  (U.  S.)  46; 
Wilson  V.  Lyon,  51  111.  166;  Schnebly  v.  Ragan,  7  Gill  &  J.  (Md.) 
125,  28  Am.  Dec.  195. 

59  4  Kent's  Comm.  153;  Winter  v.  Anson,  3  Russ.  488;  Baum  v. 
Grigsby,  21  Gal.  172,  81  Am.  Dec.  153;  Fish  v.  Rowland,  1  Paige  (N. 
Y.)  20;  Honore's  Ex'r  v.  Blakewell.  6  B.  Mon.  (Ky.)  67,  43  Am. 
Dec.  147;  Madden  v.  Barnes,  45  Wis.  135,  30  Am.  Rep.  703;  Manly 
V.  Slason,  21  Vt.  271,  52  Am.  Dec.  60. 

60  4  Kent's  Comm.  153;  Cordova  v.  Hood,  17  Wall.  (U.  S.)  1;  An- 
drus  V.  Coleman,  82  111.  26,  25  Am.  Rep.  289;  Kendrick  v.  Eggle- 
ston,  56  Iowa,  128,  41  Am.  Rep.  90;  Carrico  v.  Farmers'  &  Merchants' 
Nat.  Bank  of  Baltimore,  33  Md.  235;  Fonda  v.  Jones,  42  Miss.  792, 
2  Am.  Rep.  669;  Durette  v.  Briggs,  47  Mo.  356;  Follett  v.  Reese,  20 
Ohio,  546,  55  Am.  Dec.  472;  Marshall  v.  Christmas,  3  Humph. 
(Tenn.)  616,  39  Am.  Dec.  199. 

61  4  Kent's  Comm.  153;  Kinney  v.  Ensminger,  94  Ala.  536;  Avery  v. 
Clark,  87  Cal.  619,  22  Am.  St.  Rep.  272;  Baker  v.  Updike,  155  111 
54;  Young  v.  Wood,  11  B.  Mon.  (Ky.)  123;  Fonda  v.  Jones,  42  Miss. 

(1291) 


§   565  REAL  PROPERTY.  [Ch.  36 

raises  a  presumption  of  waiver,  which  may  be  rebutted  by  evi- 
dence of  an  agreement  or  intention  that  the  lien  shall  still 
exist.^^  A  receipt  or  acknowledgment  of  payment  of  the 
price  does  not  involve  a  waiver  of  the  lien  if  the  price  has  not 
actually  all  been  paid.^^ 

§  565.     Express  lien  of  grantor. 

In  all  jurisdictions,  including  those  in  which  there  is  no 
vendor's  lien  by  implication  of  law,  it  is  recognized  that  the 
vendor  may,  by  express  provision  in  the  deed  of  conveyance, 
or  in  a  separate  instrument,  reserve  a  lien  for  a  part  or  the 
whole  of  the  purchase  price.^^  Such  a  lien  is  recognized  by 
the  courts  as  closely  approximating  to  a  mortgage  in  its  char- 
acter and  effect,®^  it  being,  as  has  been  well  said,  a  "mode  of 
realizing  the   purely   equitable    conception   of   a   mortgage, 

792,  2  Am.  Rep.  669;  Orrick  v.  Durham,  79  Mo.  174.  But  that  the 
lien  is  not  waived  by  taking  a  mortgage  on  the  land,  see  Boos  v. 
Ewing,  17  Ohio,  521,  49  Am.  Dec.  478;  Wasson  v.  Davis.  34  Tex. 
159. 

62  Cordova  v.  Hood,  17  Wall.  (U.  S.)  1;  Woodall  v.  Kelly,  85  Ala. 
368,  7  Am.  St.  Rep.  57;  Stroud  v.  Allison,  35  Ark.  100;  McGonigal  v. 
Plummer,  30  Md.  422;  Fonda  v.  Jones,  42  Miss.  792,  2  Am.  Rep.  669; 
Sanders  v.  McAffee,  41  Ga.  684;  Lord  v.  Wilcox,  99  Ind.  491;  Hunt 
v.  Marsh,  80  Mo.  396;  Avery  v.  Clark,  87  Cal.  619,  22  Am.  St.  Rep. 
272;  Marshall  v.  Christmas,  .3  Humph.  (Teun.)  616,  39  Am.  Dec. 
199;  Kendrick  v.  Eggleston,  56  Iowa,  128,  41  Am.  Rep.  90;  Boies  v. 
Benham,  127  N.  Y.  620. 

63  Mackreth  v.  Symmons,  15  Ves.  329;  Walton  v.  Hargroves,  42 
Miss.  18,  97  Am.  Dec.  429;  Holman  v.  Patterson's  Heirs,  29  Ark.  357; 
Thompson  v.  Corrie,  57  Md.  197;  Simpson  v.  McAllister,  56  Ala.  228: 
Kent  V.  Gerhard,  12  R.  I.  92,  34  Am.  Rep.  612. 

64  3  Pomeroy,  Eq.  Jur.  §  1257;  Bell  v.  Pelt,  51  Ark.  433,  14  Am.  St. 
Rep.  57;  Greeno  v.  Barnard,  18  Kan.  518;  Morrison  v.  Brown,  83  111. 
562;  Carr  v.  Thompson,  67  Mo.  472;  Jackson  v.  Rutledge,  3  Lea 
(Tenn.)  626,  31  Am.  Rep.  655;  Helm  v.  Weaver,  69  Tex.  143.  See 
Hiester  v.  Green,  48  Pa.  St.  96,  86  Am.  Dec.  569. 

65  Ober  V.  Gallagher,  93  U.  S.  199;  King  v.  Young  Men's  Ass'n,  1 
Woods,  386,  Fed.  Cas.  No.  7,811;  Markoe  v.  Andras,  67  111.  34;  Ding- 
ley  V.  Bank  of  Ventura,  57  Cal.  467;  Ufford  v.  Wells,  52  Tex.  612. 

(1292) 


Ch.  36]  EQUITABLE   LIENS.  §   566 

stripped  of  all  its  legal  forms  and  features."^^  The  lien 
binds  the  land  in  the  hands  of  all  persons  except  purchasers 
for  value  without  notice,  and  one  claiming  under  the  vendee 
is  necessarily  charged  with  notice  if  the  lien  is  expressly  re- 
served in  the  deed,  and  this  is  recorded.^^  ^o  particular 
langTiage  is  necessary  to  give  rise  to  this  lien,  provided  the 
intention  to  reserve  the  lien  is  clearly  expressed  ;^^  hut  the 
mere  recital  that  the  purchase  money  or  a  part  thereof  is  un- 
paid is  insufficient.^^  This  express  lien  may  be  assigned,  and 
the  benefit  thereof  will  pass  to  the  assignee  of  the  whole  or 
part  of  the  purchase  money  secured  by  the  lienJ^ 

§  566.     Vendor's  lien  before  conveyance. 

Upon  the  making  of  a  contract  for  the  sale  of  land,  with 
a  stipulation  for  the  making  of  a  conveyance  in  the  future, 
as  when  the  vendor  gives  a  bond  to  convey  upon  the  perform- 
ance of  certain  conditions  by  the  purchaser,  the  vendor  be- 
comes, as  before  explained,  a  trustee  for  the  purchaser,  and 
holds  the  legal  title  subject  to  the  terms  of  the  contract  of 
sale."^^  The  equitable  interest  or  estate  which  the  purchaser 
has  in  such  case  is,  however,  subject  to  the  right  of  the  vendor 
to  payment  of  the  purchase  price,  and  this  right  the  vendor 
may,  if  necessary,  enforce  by  a  proceeding  in  equity  some- 
what analogous  to  the  foreclosure  of  a  mortgage,  by  which  the 
vendee  loses  all  his  contract  rights  in  the  land.'-      The  courts, 

66  3  Pomeroy,  Eq.  Jur.  §  1257. 

67  3  Pomeroy,  Eq.  Jur.  §§  1257,  1258;  Dingley  v.  Bank  of  Ventura, 
57  Cal.  467;  Sidwell  v.  Wheaton,  114  111.  267;  Stratton  v.  Gold,  40 
Miss.  778;  Eichelberger  v.  Gitt,  104  Pa.  St.  64. 

68  Moore  v.  Lackey,  53  Miss.  85;  3  Pomeroy,  Eq.  Jur.  §  1256,  note. 
63  Hiester  v.  Green,  48  Pa.  St.  96,  86  Am.  Dec.  569. 

ToOber  v.  Gallagher,  93  U.  S.  199;  Dowdy  v.  Blake,  50  Ark.  205, 
7  Am.  St.  Rep.  88;  Dingley  v.  Bank  of  Ventura,  57  Cal.  467;  Markoe 
V.  Andras,  67  111.  34;  Duncan  v.  Louisville,  13  Bush  (Ky.)  378; 
Bailey  v.  Smock,  61  Mo.  213;  Moore  v.  Lackey,  53  Miss.  85. 

Ti  See  ante,  §  110. 

72  Micou  V.  Ashurst,  55  Ala.  607;  Sparks  v.  Hess,  15  Cal.  186,  194; 

(1293) 


§   567  REAL  PROPERTY.  [Ch.  36 

in  referring  to  this  right  of  the  vendor  to  enforce  his  chiim 
against  the  land,  frequently  assimilate  the  relation  of  the  ven- 
dor and  vendee  to  that  of  mortgagee  and  mortgagor  f^  and  the 
right  of  the  vendor  to  enforce  his  claim  for  the  price  against 
the  vendee's  equitable  interest  in  the  land  itself  is  frequently 
spoken  of  as  a  "vendor's  lien," — a  use  of  the  latter  term  which 
is  to  be  carefully  distinguished  from  its  use  to  describe  what 
we  have  treated  of  above  under  the  name  of  "the  implied  lien 
of  the  grantor,"'''^  Since  the  retention  of  the  legal  title  shows 
a  clear  intention  to  rely  on  such  title  as  security  for  payment 
of  the  price,  a  waiver  of  this  right  of  the  vendor  will  not  be 
implied  from  the  taking  of  other  security  for  the  price. '^^ 
This  lien,  so  called,  in  favor  of  the  vendor,  passes  to  one  to 
whom  he  transfers  the  right  of  action  for  the  purchase  money, 
as  by  an  assignment  of  a  note  given  therefor.'^'^ 

§  567.     Vendee's  lien. 

The  vendee  under  a  contract  for  the  sale  of  land  has,  in 
equity,  before  he  receives  a  conveyance  of  the  land,  a  lien 

Gaston  v.  White,  46  Mo.  486;  Moore  v.  Anders,  14  Ark.  628,  60  Am. 
Dec.  551. 

73  Hardin  v.  Boyd,  113  U.  S.  756;  Moses  v.  Johnson,  88  Ala.  517,  16 
Am.  St.  Rep.  58;  Hutchinson  v.  Crane,  100  111.  269;  Strickland  v. 
Kirk,  51  Miss.  795;  Graham  v.  McCampbell,  Meigs  (Tenn.)  56,  33 
Am.  Dec.  126;  Church  v.  Smith,  39  Wis.  492. 

74  The  confusion  arising  from  these  different  uses  of  the  term 
"vendor's  lien,"  and  the  essential  distinctions  between  these  various 
equitable  rights,  are  admirably  discussed  in  3  Pomeroy,  Eq.  Jur.  §§ 
1260,  1261. 

75  Robinson  v.  Appleton,  124  111.  276;  McCaslin  v.  State,  44  Ind. 
151;  Hurley  v.  Hollyday,  35  Md.  469. 

76Burkhart  v.  Howard,  14  Or.  39;  Stevens  v.  Chadwick,  10  Kan. 
406,  15  Am.  Rep.  348;  Robinson  v.  Harbour,  42  Miss.  795,  97  Am.  Dec. 
501;  McClintic  v.  Wise's  Adm'rs,  25  Grat.  (Va.)  448,  18  Am.  Rep. 
694;  McConnell  v.  Beattie,  34  Ark.  113;  Hutchinson  v.  Crane,  100  111. 
269. 
(1294) 


Ch.  36]  EQUITABLE  LIENS.  §   567 

thereon  for  any  payments  which  he  has  made  upon  the  pur- 
chase price  in  case  the  contract  fails  of  consummation  owing 
to  the  fault  of  the  vendor.'''^ 

TTRose  V.  Watson,  10  H.  L.  Cas.  672;  Stults  v.  Brown,  112  Ind.  370, 
2  Am.  St.  Rep.  190;  Cooper  v.  Merritt,  30  Ark.  686;  Wickman  v. 
Robinson,  14  Wis.  493,  80  Am.  Dec.  789;  Galbraith  v.  Reeves,  82  Tex. 
357;  2  Story,  Eq.  Jur.  §  1217;  3  Pomeroy,  Eq.  Jur.  §  1263. 

(1295) 


CHAPTER  XXXVII. 
STATUTORY  LIENS. 

§  568.  General  considerations. 

569.  Mechanics'  liens. 

570.  Judgment  liens. 

571.  Attachment  liens. 

572.  Execution  liens. 

573.  Liens  for  taxes  and  assessments. 

574.  The  lien  of  decedent's  debts. 

575.  Liens  on  crops. 

576.  The  statutory  lien  for  improvements. 

577.  Widow's  allowance. 

Liens  on  another's  land  may  exist  by  force  of  a  statute,  either 
expressly  providing  for  a  lien  in  a  certain  contingency,  or  in 
effect  doing  so  by  making  the  land  liable  for  the  enforcement 
of  an  obligation,  without  reference  to  its  transfer  to  one  not 
originally  liable  on  the  obligation.  The  principal  statutory 
liens  on  land  are  (1)  mechanics'  liens,  (2)  judgment  liens, 
(3)  attachment  liens,  (4)  execution  liens,  (5)  liens  for  taxes 
and  assessments,  (6)  the  lien  of  a  decedent's  debts.  Of  occa- 
sional occurrence  are  (7)  various  liens  on  crops  on  the  land, 
(8)  the  statutory  lien  for  improvements,  (9)  the  lien  of  the 
widow's  allowance,  and  in  some  states  there  are  other  statutory 
liens. 

§  568.     General  considerations. 

Since,  at  common  law,  no  lien  upon  land  was  recognized^ 
the  only  liens  which  can  at  the  present  day  be  imposed  there- 
on, apart  from  equitable  liens  proper,  and  mortgages,  the  lien 
idea  of  which  is  the  creation  of  equity,  are  those  authorized  by 
statute,  known-  as  "statutory  liens."  The  legislatures  of  the 
various  states,  in  providing  for  such  liens,  have  followed  the 
(1296) 


Ch.  37J  STATUTORY  LIENS.  §    569 

same  general  lines  of  policy,  and  there  are,  it  is  believed,  in 
but  few  states  liens  of  a  character  not  referred  to  in  the  fol- 
lowing sections. 

§  569.     Mechanics'  liens. 

A  mechanic's  lien  is  a  lien  on  land,  and  on  the  fixtures  and 
improvements  thereon,  created  by  statute,  to  secure  the  com- 
pensation of  persons  who,  under  contract  with  the  owner,  or 
some  person  authorized  in  his  behalf,  contribute  labor  or  ma- 
terials to  the  improvement  of  the  land. 


Persons  entitled  to  lien. 


The  statute  usually  provides  that  any  person  furnishing 
labor  or  materials  for  the  erection  or  repair  of  a  building  shall 
have  a  lien  on  the  land  and  the  building,  and  it  sometimes 
specifically  names  certain  classes  of  persons  so  entitled,  such 
as  "mechanics,"  "laborers,"  "materialmen,"  "builders,"  or 
the  like.^  A  lien  of  this  same  general  character  is  also  some- 
times given  for  work  not  in  connection  with  the  erection  or  re- 
pair of  buildings,  as  for  work  upon  bridges,  canals,  railroads^ 
mines,  fences,  or  machinery.^ 

The  earlier  mechanic's  lien  statutes  sometimes  protected 
only  those  who  furnished  labor  or  materials  otherwise  than 
by  direct  contract  with  the  owner  of  the  land,  and  did  not 
give  a  lien  to  a  person  contracting  directly  with  the  owner.^ 
The  present  statutes,  however,  always  give  a  lien  to  a  per- 
son furnishing  labor  or  materials  by  direct  contract  with  the 
owner,  who  is  usually  known  as  the  "contractor."'* 

1 1  Stimson's  Am.  St.  Law,  §§  1961,  1962. 

2  See,  as  to  the  statutes  creating  liens  for  work  done  in  and  about 
mines,  Barringer  &  Adams,  Mines,  771;  for  work  done  upon  rail- 
roads, 2  Jones,  Liens,  §§  1618-1625;  Boisot,  Mech.  Liens,  §§  188-205. 

3  Phillips,  Mech.  Liens,  §§  41,  42. 

4  Phillips,  Mech.  Liens,  §§  36,  40;  Boisot,  Mech.  Liens,  §  218. 

(1297) 
Real  Prop.— 82. 


§   569  REAL  PROPERTY.  [Ch.  37 

A  "subcontractor"" — that  is,  a  person  furnishing  labor,  not 
by  contract  with  the  owner,  but  by  contract  with  the  contractor 
— is  in  most  states  entitled  to  a  lien.^ 

In  undertaking  to  give  to  a  subcontractor  a  lien  for  his  la- 
bor, two  different  theories  or  systems  have  been  adopted  in  the 
statutes  of  the  different  states.  By  one  system,  sometimes 
known  as  the  "New  York"  system,  a  subcontractor  is  given 
a  lien  by  way  of  "subrQgation,"  as  it  is  expressed,  to  the  rights 
of  the  contractor, — that  is,  he  stands  in  the  place  of  the  con- 
tractor, and  cannot  claim  a  lien  for  a  sum  greater  than  that 
due  to  the  contractor  at  such  time  as  the  subcontractor  may 
give  notice  of  his  claim  to  the  owner,  who  is  thus  enabled  to 
withhold  from  the  principal  contractor  sufficient  to  satisfy  the 
claim  of  the  subcontractor.*^  Under  the  other  system,  some- 
times termed  the  "Pennsylvania"  system,  the  subcontractor 
is  given  a  direct  lien,  without  reference  to  the  rights  of  the 
contractor,  and  consequently  the  owner  acts  at  his  peril  if  he 
makes  any  payments  to  the  contractor,  unless  he  has  first  sat- 
isfied himself  that  the  subcontractor's  claims  are  paid.'^  So, 
while  under  the  New  York  system  the  subcontractor  has  no 
lien  if  the  contractor  makes  default  in  his  contract,  so  as  to 
leave  nothing  owing  to  the  latter,^  such  default  does  not,  un- 
der the  Pennsylvania  system,  affect  the  subcontractor's  lien 

5  1  Stimson's  Am.  St.  Law,  §  1966;  Phillips,  Mech.  Liens,  §§  44,  45. 

6  See  Lafkin  v.  McMullin,  120  N.  Y.  206;  Renton  v.  Conley,  49 
Cal.  185;  Mclntire  v.  Barnes,  4  Colo.  288;  Culver  v.  Elwell,  73  111. 
536;  Cudworth  v.  Bostwick,  69  N.  H.  536;  Copeland  v.  Manton,  22 
Ohio  St.  398;  Berry  v.  McAdams,  93  Tex.  431. 

'  Merrigan  v.  English,  9  Mont.  113;  White  v.  Miller,  18  Pa.  St.  52; 
Hunter  v.  Truckee  Lodge,  14  Nev.  24;  Andis  v.  Davis,  63  Ind.  17; 
Laird  v.  Moonan,  32  Minn.  358;  Henry  &  Coatsworth  Co.  v.  Erans, 
97  Mo.  47;  Bowen  v.  Phinney,  162  Mass.  593,  44  Am.  St.  Rep.  391; 
Mallory  v.  La  Crosse  Abattoir  Co.,  80  Wis.  170. 

«  Kelly  V.  Bloomingdale,  139  N.  Y.  343;  Smith  v.  Sheltering  Arms, 
89  Hun  (N.  Y.)  70;  Mayer  v.  Mutchler,  50  N.  J.  Law,  162;  Pullen- 
wider  v.  Longmoor,  73  Tex.  480. 

(1298) 


Ch.  37]  STATUTORY  LIENS.  §  559 

for  the  full  amount  of  his  claim.*  But  even  where  t^xe  latter 
system  prevails,  the  subcontractor's  right  to  a  lien  arises  from 
the  original  contract  between  the  owner  and  the  contractor, 
and  he  cannot  claim  for  work  not  authorized  by  such  con- 
tract, nor  demand  payment  in  a  mode  other  than  that  named 
therein.-^" 

"Materialmen" — that  is,  persons  furnishing,  not  labor,  but 
materials — have  liens  onl}^  when  the  statute  so  provides,  and 
are  not  usually  regarded  as  within  the  scope  of  provisions  for 
the  benefit  of  "contractors,"  "mechanics,"  or  the  like.^^  Ma- 
terialmen may  be  those  furnishing  materials  under  contract 
either  with  the  owner,  with  the  contractor,  or  even  with  a  sub- 
contractor, and  the  phraseology  of  the  statute  may,  of  course, 
be  such  as  to  give  a  lien  to  a  materialman  of  one  of  such 
classes,  and  not  to  others.  The  distinct  systems  of  legislation 
referred  to  in  connection  with  subcontractors  exist  also  in  the 
case  of  persons  furnishing  materials  to  the  contractor,  their 
rights  being  dependent  on  the  state  of  accounts  between  the 
contractor  and  the  owner  in  those  states  in  wdiich  the  ISTew 
York  rule  is  followed,^-  while  their  rights  are  unaffected  by 
this  consideration  in  states  where  the  Pennsylvania  rule  is 
adopted.^  ^ 

0  Linden  Steel  Co.  v.  Rough  Run  Mfg.  Co.,  158  Pa.  St.  238;  Seeman 
V.  Biemann,  108  Wis.  365;  Bowen  v.  Phinney,  162  Mass.  593,  44  Am. 
St.  Rep.  391. 

loBoisot,  Mech.  Liens,  §§  228-231;  Phillips,  Mech.  Liens,  §§  58,  62g; 
2  Jones,  Liens,  §  1289;  Schroeder  v.  Galland,  134  Pa.  St.  277;  Taylor 
V.  Murphy,  148  Pa.  St.  337,  33  Am.  St.  Rep.  825;  Siebrecht  v.  Hogan. 
99  Wis.  437. 

11  Hinckley  v.  Field's  Biscuit  &  Cracker  Co.,  91  Cal.  136;  Duff  v. 
Hoffman,  63  Pa.  St.  191;  Arnold  v.  Budlong,  11  R.  I.  561;  Davis  v. 
Betz,  66  Ala.  206;  Boisot,  Mech.  Liens,  §  241;  Phillips,  Mech.  Liens, 
§  47. 

12  Shelton  v.  Merrill,  63  Ala.  343;  Carman  v.  Mclncrow,  13  N.  Y. 
70;   Turner  v.  Strenzel,  70  Cal.  28;   Berry  v.  McAdams,  93  Tex.  431. 

13  Henry  &  Coatsworth  Co.  v.  Evans,  97  Mo.  47;  White  v.  Miller, 
18  Pa.  St.  52. 

(1299) 


§   569  REAL  PROPERTY.  [Ch.  37 

Contract  or  consent  of  owner. 

The  statute  usually  provides  that  the  labor  or  materials 
must  have  been  furnished  by  agreement  with,  or  sometimes 
by  the  "consent"  of,  the  "owner."^^  The  term  "owner"  in- 
cludes not  only  those  who  have  an  estate  in  fee  in  the  land, 
but  also  those  having  an  estate  less  than  freehold.  One  hav- 
ing such  limited  estate  can,  however,  as  a  rule,  not  create  a 
lien  more  extensive  than  his  own  interest ;  that  is,  on  others' 
interests  in  the  land.^^  Labor  or  materials  furnished  under 
a  contract  with  one  having  a  mere  leasehold  estate  in  the 
land  may,  however,  support  a  lien  upon  the  reversion,  if  the 
owner  of  the  latter  expressly  or  impliedly  authorizes  or  adopts 
such  contract,^*'  and,  where  the  statute  creates  a  lien  for  labor 
or  materials  furnished  with  the  consent  or  permission  of  the 
owner,  the  reversion  may  become  subject  to  a  lien  for  work 
or  labor  furnished  under  a  contract  with  the  lessee,  by  reason 
of  consent,  expressed  or  implied,  on  the  part  of  the  reversion- 
er, to  the  making  of  the  improvements.-^''^ 

A  vendee  under  an  executory  contract  for  the  sale  of  land 
is  sometimes  regarded  as  the  "owner,"  within  the  meaning 
of  the  mechanic's  lien  acts,  he  having,  as  before  explained,  an 
equitable  interest  in  the  land.     On  this  theory,  one  furnish- 

14  1  Stimson's  Am.  St.  Law,  §  1966. 

15  See  Paulsen  v.  Manske,  126  111.  72,  9  Am.  St.  Rep.  532;  Monroe 
V.  West,  12  Iowa,  119,  79  Am.  Dec.  524;  Currier  v.  Cummings,  40 
N.  J.  Eq.  145;  Choteau  v.  Thompson,  2  Ohio  St.  114;  Williams  v. 
Vanderbilt,  145  111.  238,  36  Am.  St.  Rep.  486;  Francis  v.  Sayles,  101 
Mass.  435;  Cornell  v.  Barney,  94  N.  Y.  394;  Long  v.  McLanahan, 
103  Pa.  St.  537;  Stetson-Post  Mill  Co.  v.  Brown,  21  Wash.  619,  75 
Am.  St.  Rep.  862;  Hoffman  v.  McColgan,  81  Md.  390;  2  Jones, 
Liens,  §§  1272-1276;   Phillips,  Mech.  Liens,  §§  83-89. 

16  Scroggin  v.  National  Lumber  Co.,  41  Neb.  195;  Kremer  v.  Wal- 
ton, 11  Wash.  120,  48  Am.  St.  Rep.  870;  Hall  v.  Parker,  94  Pa.  St. 
109. 

17  West  Coast  Lumber  Co.  v.  Newkirk,  80  Cal.  275;  Gay  v.  Hervey, 
41  N.  J.  Law,  39;  Bentley  v.  Adams,  92  Wis.  386;  Burkitt  v.  Harper, 
79  N.  Y.  273. 

(1300) 


Oh.  37]  STATUTORY  LIENS.  §  569 

ing  labor  or  materials  under  contract  with  such  vendee  has  a 
lien  on  his  interest  in  the  land,  which  extends  to  the  legal  title 
when  acquired  by  the  latter,  and  which  is,  on  the  other  hand, 
terminated  if  the  vendee  loses  all  rights  under  his  contract  by 
a  failure  to  comply  therewith. ^^  A  lien  has  been  sustained  in 
favor  of  one  furnishing  labor  or  materials  under  a  contract 
with  a  vendee,  in  some  cases,  on  the  theory  that  lie  was,  un- 
der the  particular  circumstances,  the  agent  of  the  vendor,^® 
and,  in  other  cases,  on  the  ground  that  the  improvements  on 
the  land  were  with  the  vendor's  consent,  and  so  within  the 
statutory  requirement  of  the  owner's  consent,  as  when  it  was 
stipulated  in  the  contract  of  sale  that  such  improvements  were 
to  be  made.^*^ 

Priorities. 


A  mechanic's  lien  is  valid,  in  most,  if  not  all,  jurisdictions, 
as  against  purchasers  of  the  land ;  the  purchaser  being  affected 
with  notice  of  the  lien  either  by  the  fact  that  improvements 
are  being  made  on  the  land,  or  by  the  presence  upon  the  court 
records  of  proceedings  to  obtain  or  enforce  the  lien.^^  Like- 
wise, a  mortgage  of  the  land  or  other  lien  thereon,  taking  ef- 
fect after  the  inception  of  the  mechanic's  lien,  is  subject  there- 
is  Monroe  v.  West,  12  Iowa,  119,  79  Am.  Dec.  524;  Colman  v.  Good- 
new,  36  Minn.  9,  1  Am.  St.  Rep.  632;  Fullmer  v.  Poust,  155  Pa.  St. 
275,  35  Am.  St.  Rep.  881;  Paulsen  v.  Manske,  126  111.  72;  Kerrick  v. 
Ruggles,  78  Wis.  274;  Chicago  Lumber  Co.  v.  Osborn,  40  Kan.  168. 
Contra,  to  the  effect  that  the  vendee  is  not  an  "owner,"  see  Brown 
V.  Morison,  5  Ark.  217;  Hayes  v.  Fessenden,  106  Mass.  228. 

19  Moore  v.  Jackson,  49  Cal.  109;  Henderson  v.  Connelly,  123  111. 
98,  5  Am.  St.  Rep.  490;  Althen  v.  Tarbox,  48  Minn.  18,  31  Am.  St. 
Rep.  616;  Sheehy  v.  Fulton,  38  Neb.  691,  41  Am.  St.  Rep.  767. 

20  Baker  v.  Waldron,  92  Me.  17,  69  Am.  St.  Rep.  483;  Hackett  v. 
Badeau,  63  N.  Y.  476;  Edwards  &  McCulloch  Lumber  Co.  v.  Mosher, 
88  Wis.  672;  Davis  v.  Humphrey,  112  Mass.  309. 

21  See  Work  v.  Hall,  79  111.  196;  Miller  v.  Barroll,  14  Md.  173; 
Fleming  v.  Bumgarner,  29  Ind.  424;  Blauvelt  v.  Woodworth,  31  N.  Y. 
285;  Burr  v.  Maultsby,  99  N.  C.  263,  6  Am.  St.  Rep.  517;  Ambrose 
V.  Woodmansee,  27  Ohio  St.  147;  Williams  v.  Chicago,  S.  F.  &  C.  Ry. 
-Co.,  112  Mo.  463,  34  Am.  St.  Rep.  403. 

(1301) 


§   569  REAL  PROPERTY.  [Ch.   37 

to.-"  A  mortgage  executed  and  recorded  before  the  attaching 
of  the  lien  will  take  precedence  thereof,^^  and,  in  some  states, 
it  is  sufficient  that  it  be  executed,  though  not  recorded.^^  Un- 
der the  statutes  of  some  states,  a  mechanic's  lien,  while  sub- 
ject to  a  prior  mortgage  or  other  incumbrance  as  regards  the 
land  and  pre-existing  improvements  thereon,  takes  precedence 
as  to  improvements  for  the  creation  or  repair  of  which  the 
lien  is  claimed.^^ 

The  time  at  which  the  mechanic's  lien  attaches  to  the  land 
is  of  primary  importance  in  determining  priorities  as  between 
the  lien  and  the  claims  of  purchasers  or  other  incumbrancers. 
In  some  states  the  lien  attaches  when  the  contract  under  which 
the  labor  or  materials  are  furnished  was  made;^^  in  some, 
when  the  building  or  improvement  was  commenced  j^"^  in 
some,  when  the  person  asserting  the  lien  first  began  to  furnish 
the  labor  or  materials  for  which  the  lien  is  claimed  f^  and  in 

22  Jones,  Liens,  §§  1457-1486;  Soule  v.  Hurlbut,  58  Conn.  511; 
Thielman  v.  Carr,  75  111.  385;  Dunklee  v.  Crane,  103  Mass.  470; 
Hahn's  Appeal,  39  Pa.  St.  409. 

23  National  Bank  of  Athens  v.  Danforth,  80  Ga.  55;  Thielman  v. 
Carr,  75  111.  385;  Batchelder  v.  Hutchinson,  161  Mass.  462;  Folsom 
V.  Cragen,  11  Colo.  205;  Jean  v.  Wilson,  38  Md.  288;  2  Jones,  Liens, 
§  1460. 

24  Root  V.  Bryant,  57  Cal.  48;  Oliver  v.  Davy,  34  Minn.  292;  Ryder 
V.  Cohb,  68  Iowa,  235. 

25  Preston  v.  Sonora  Lodge,  No.  10,  39  Cal.  116;  Jarvis  v.  State 
Bank  of  Ft.  Morgan,  22  Colo.  309,  55  Am.  St.  Rep.  129;  Bradley  v. 
Simpson,  93  111.  93;  Ivey  v.  White,  50  Miss.  142;  Russell  v.  Grant,  122 
Mo.  161,  43  Am.  St.  Rep.  563;  2  Jones,  Liens,  §  1462;  Boisot,  Mech. 
Liens,  §  149. 

26  Paddock  v.  Stout,  121  111.  571;  Dunklee  v.  Crane,  103  Mass.  470. 

27  Apperson  v.  Parrell,  56  Ark.  640;  Hahn's  Appeal,  39  Pa.  St.  409; 
Neilson  v.  Iowa  Eastern  Ry.  Co.,  44  Iowa,  71;  Delaware  Railroad 
Construction  Co.  v.  Davenport  &  St.  P.  Ry.  Co.,  46  Iowa,  406;  Kansas 
Mortgage  Co.  v.  Weyerhaeuser,  48  Kan.  355;  Milner  v.  Norris,  13 
Minn.  455  (Gil.  424);  Oriental  Hotel  Co.  v.  Griffiths,  88  Tex.  574,  53 
Am.  St.  Rep.  790. 

28Tritch  V.  Norton,  10  Colo.  337;   Kellenberger  v.  Beyer,  37  Ind. 

(1302) 


Ch.  37]  STATUTORY  LIENS.  §   Sb^ 

others,  when  a  claim  or  statement  of  the  lieu  is  filed,  or  no- 
tice of  the  claim  is  given  to  the  owner. ^^ 

Assertion  and  enforcement  of  lien. 


The  statutes  quite  frequently  provide  that  one  seeking  to 
enforce  a  mechanic's  lien  shall  so  notify  the  owner  of  the 
land ;  this  requirement  existing  especially  in  the  case  of 
liens  in  favor  of  persons  not  contracting  directly  with  such 
owner,  such  as  subcontractors,  and  persons  furnishing  ma- 
terials to  contractors.^*^ 

In  most  states  there  is  a  statutory  requirement  that  the 
person  claiming  the  lien  file,  within  a  certain  time,  a  verified 
statement  of  the  character  of  the  contract,  the  work  done 
thereunder,  the  amount  due,  the  property  on  "which  the  lien  is 
claimed,  and,  frequently,  other  matters  concerning  the  claim. 
This  statement  is  called  by  different  names,  such  as  "claim,'' 
"notice,"  or  "account,"  and  the  statutory  requirements  in 
regard  thereto  must  be  strictly  complied  with.^^  The  ofFect 
of  filing  such  a  statement  is  to  establish  the  lien,  since  it 
serves  as  notice  to  all  the  world  of  the  existence  of  the  claim. 
After  the  lien  is  thus  established,  the  lienor  may  begin  a 
proceeding  to  sell  the  land  under  the  lien.  This  proceeding 
is  usually  in  equity,  and  is  similar,  in  its  general  aspects,  to 
an  equitable  suit  for  the  sale  of  land  under  a  mortgage."'" 

188;  Chapman  v.  Brewer,  43  Neb.  890,  47  Am.  St.  Rep.  779;  Burr  v. 
Maultsby.  99  N.  C.  263,  6  Am.  St.  Rep.  517. 

29  McCorkle  v.  Herrman,  117  N.  Y.  297;  Ritchey  v.  Risley,  3  Or. 
184;  Hinckley  &  Egery  Iron  Co.  v.  James,  51  Vt.  240;  Cahoon  v. 
Levy,  6  Cal.  295,  65  Am.  Dec.  515. 

30  1  Stimson's  Am.  St.  Law,  §§  1965,  1967. 

•ii  1  Stimson's  Am.  St.  Law,  §  1968;  Phillips,  Mech.  Liens,  §  337  et 
seq. ;  Boisot,  Mech.  Liens,  §  374  et  seq. 

32  2  Jones,  Liens,  §  1554  et  seq.;  Boisot,  Mech.  Liens,  §  507  et  seq.; 
13  Enc.  PL  &  Pr.  939. 

(l.'JO:}) 


§  570  REAL  PROPERTY.  [Ch.  37 


Release  or  waiver  of  lien. 


-  The  right  to  a  mechanic's  lien  may  be  waived  or  released.^' 
In  some  states,  but  in  a  minority  only,  a  waiver  is  prima  facie 
inferred  from  the  fact  that  the  person  furnishing  labor  or 
materials  has  taken  collateral  security^'*  or  a  mortgage  on 
the  specific  land^^  for  his  claim.  The  mere  acceptance  of  a 
note,  signed  by  the  owner  or  other  person  liable  for  the 
debt,  is  not  a  waiver,  in  the  absence  of  an  intention  to  that 
©ffect.3^ 

§  570.    Judgment  liens. 

At  common  law,  a  creditor  had  no  remedy  against  the  lands 
of  his  debtor  for  the  satisfaction  of  his  claim ;  but  by  13  Edw. 
I.  c.  18,^^  it  was  provided  that,  when  a  debt  is  recovered  or 
damages  awarded,  it  shall  be  thenceforth  "in  the  election"  of 
the  creditor  to  have  a  writ  of  fieri  facias  against  the  goods 
and  chattels  of  the  debtor,  or  -else  a  writ  that  the  sheriff  de- 
liver to  him  all  the  chattels  of  the  debtor  and  the  one-half  of 

33  Phillips,  Mech.  Liens,  cc.  24,  26;  2  Jones,  Liens,  §§  1500-1537; 
Boisot,  Mech.  Liens,  §§  705-719,  732. 

34  Clark  V.  Moore,  64  111.  273;  Bristol-Goodson  Electric  Light  & 
Power  Co.  v.  Bristol  Gas,  Electric  Light  &  Power  Co.,  99  Tenn.  371. 
See  Grant  v.  Strong,  18  Wall.  (U.  S.)  623.  By  statute  in  several 
states  the  lien  is  waived  by  taking  collateral  security.  2  Jones, 
Mortgages,  §  1519.  But  that  taking  collateral  security  raises  no 
presumption  of  waiver,  see  Ford  v.  Wilson,  85  Ga.  109;  Allis  v. 
Meadow  Spring  Distilling  Co.,  67  Wis.  16;  Hinchman  v.  Lybrand, 
14  Serg.  &  R.  (Pa.)  32;  Hoagland  v.  Lusk,  33  Neb.  376,  29  Am.  St. 
Rep.  485.     See  McKeen  v.  Haseltine,  46  Minn.  426. 

35  Trullinger  v.  Kofoed,  7  Or.  228,  33  Am.  Rep.  708;  Willison  v. 
Douglas,  66  Md.  99;  Weaver  v.  Demuth,  40  N.  J.  Law,  238;  Grant  v. 
Strong,  18  Wall.  (U.  S.)  623.  Contra,  Parberry  v.  Johnson,  51  Miss. 
291;  Gilcrest  v.  Gottschalk,  39  Iowa,  311;  Chapman  v.  Brewer,  43 
Neb.  890,  47  Am.  St.  Rep.  779;  Farmers'  &  Mechanics'  Nat.  Bank  of 
Fort  Worth  v.  Taylor,  91  Tex.  78. 

3(i  Montandon  v.   Deas,   14   Ala.    33,   48   Am.   Dec.   84;    McKeen   v, 
Hazeltine,  46  Minn.  426;  Ehlers  v.  Elder,  51  Miss.  499. 
37  St.  Westminster  II.   (A.  D.  1285). 

(1304) 


Q^    37-1  STATUTORY  LIENS.  §   570 

his  land.  The  writ  issued  to  the  sheriff  under  this  statute 
was  called  a  writ  of  elegit,  because  it  stated  that  the  creditor 
had  elected  (elegit)  to  pursue  the  remedy  furnished  by  the 
statute.  In  construing  this  statute  it  was  decided  that  the 
creditor  could  enforce  his  remedy  against  the  lands  even  in 
the  hands  of  one  to  whom  they  had  been  sold  by  the  debtor 
after  the  recovery  of  the  judgment,  and  this  in  effect  made 
the  judgment  a  lien  or  incumbrance  on  all  the  lands  of  the 
debtor.-"^^  In  one  or  two  states  the  lien  has  been  regarded 
as  existent  by  force  of  this  statute,  or  of  a  colonial  statute 
giving  a  right  to  levy  an  execution,^^  but  it  is  usually  consid- 
ered that  no  such  lien  exists,  in  the  absence  of  a  state  stat- 
utory provision  therefor,'*"  and  there  is,  in  most  of  the  states, 
such  a  provision  subjecting  the  judgment  debtor's  land,  or. 
certain  interests  therein,  to  the  lien  of  a  judgment.'*^ 

The  lien  of  a  judgment  is  not,  it  seems,  to  be  regarded  as 
a  proprietary  right  in  the  lands  subject  thereto,  but  merely 
as  a  right  to  levy  on  any  of  such  lands  for  the  purpose  of  satis- 
fying the  judgment,  to  the  exclusion  or  destruction  of  any 
rights  which  may  have  accrued  to  others  since  the  attach- 
ment of  the  lien.^^     Consequently,  the  lienor  has  no  right 

38  See  Williams,  Real  Prop.  (IStli  Ed.)  251;  Massingill  v.  Downs, 
7  How.  (U.  S.)  760;  Morsell  v.  First  Nat.  Bank  of  Washington,  91 
U.  S.  357. 

39  United  States  v.  Morrison,  4  Pet.  (U.  S.)  124;  Coombs  v.  Jordan, 
3  Bland  Ch.  (Md.)  284,  22.  Am.  Dec.  236;  Borst  v.  Nalle,  28  Grat. 
(Va.)  423;  Hutcheson  v.  Grubbs,  80  Va.  254. 

40  Woods  V.  Mains,  1  G.  Greene  (Iowa)  275;  Thompson  v.  Avery, 
11  Utah,  214;  Shrew  v.  Jones,  2  McLean,  78,  Fed.  Gas.  No.  12,818. 
See  Groves'  Appeal,  68  Pa.  St.  143. 

41  In  the  New  England  states,  the  judgment  creditor  has  no  lien, 
but  he  may  secure  payment  of  such  judgment  as  may  be  rendered 
by  the  previous  issuance  of  an  attachment.     See  post,  §  571. 

42  See  Brace  v.  Duchess  of  Marlborough,  2  P.  Wms.  491,  Kirchwey's 
Gas.  36;  Conard  v.  Atlantic  Ins.  Co.  of  New  York,  1  Pet.  (U.  S.) 
386.  442;  Ashton  v.  Slater,  19  Minn.  347  (Gil.  300);  Foute  v.  Fair- 
man,  48  Miss.  536;  Mansfield  v.  Gregory,  11  Neb.  297;  Bruce  v.  Nich- 
olson, 109  N.  C.  202,  26  Am.  St.  Rep.  562. 

(1305) 


§   570  REAL  PROPERTY.  [Ch.  37 

in  the  land  subject  to  the  lien  which  authorizes  him  to  com- 
plain of  waste  thereon  by  the  judgment  debtor,^^  and  he  could 
not,  it  would  seem,  maintain  an  action  of  tort  against  third- 
persons  for  injury  thereto. 

Character  of  the  judgment. 


In  order  that  a  judgment  may  constitute  a  lien,  it  must 
be  one  on  which  execution  could  immediately  issue,^'*  and 
consequently  it  must  be  a  final,  and  not  an  interlocutory, 
judgment, ^''  and  must  be  for  a  definite  sum  of  money.'*'^ 
Subject  to  these  requirements,  the  fact  that  the  judgment  is 
by  confession'*'^  or  by  default**  is  immaterial. 

The  judgment  of  a  justice  of  the  peace  or  of  any  other  in- 
ferior court  usually,  by  the  express  provision  of  the  stat- 
ute, becomes  a  lien  only  after  the  filing  of  a  transcript  or 
record  thereof  in  one  of  the  superior  courts.*'' 

The  judgment  of  a  federal  court  is,  by  act  of  congress, 
made  a  lien  on  property  throughout  the  state  in  which  it  is 

43Laniiing  v.  Carpenter,  48  N.  Y.  408,  412;  Independent  School 
Dist.  of  West  Point  v.  Werner,  43  Iowa,  643.  But  see  Witmer's  Ap- 
peal, 45  Pa.  St.  455,  84  Am.  Dec.  505,  where  an  injunction  against 
the  removal  of  fixtures  was  issued  on  the  petition  of  the  judgment 
creditor. 

44  2  Freeman,  Judgments,  §  340;  Davidson  v.  Myers,  24  Md.  538; 
In  re  Boyd,  4  Sawy.  262,  Fed.  Cas.  No.  1,746;  Towner  v.  Wells,  8 
Ohio,   136. 

45  Grant  v.  Bennett,  96  111.  513;  Eastham  v.  Sallis,  60  Tex.  576; 
Davidson  v.  Myers,  24  Md.  538;  2  Freeman,  Judgments,  §  341. 

46Noe  V.  Moutray,  170  111.  177;  Eastham  v.  Sallis,  60  Tex.  576; 
Linn  v.  Patton,  10  W.  Va.  187. 

47  Oilman  v.  Hovey,  26  Mo.  280;  White  v.  Bogart,  73  N.  Y.  256; 
Lauffer  v.  Cavett,  87  Pa.  St.  479. 

4s  Sellers  v.  Burk,  47  Pa.  St.  344. 

40  See  Petray  v.  Howell,  20  Ark.  615;  Laughlin  v.  Hawley,  9  Colo. 
170;  American  Ins.  Co.  v.  Gibson,  104  Ind.  336;  Basterling  v.  Chiles, 
93  Ky.  315;  Jackson  v.  Jones,  9  Cow.  (N.  Y.)  182;  Adams  v.  Guy, 
106  N.  C.  275;  White  v.  Espey,  21  Or.  328. 

(1306) 


Ch.  37]  STATUTORY  LIENS.  §   570 

rendered  to  the  same  extent,  and  subject  to  the  same  condi- 
tions, as  in  the  case  of  a  judgment  rendered  by  a  state  court.^" 

In  a  number  of  the  states  there  is  a  statutory  provision  mak- 
ing a  decree  in  equity  for  the  payment  of  money  a  lien  on 
land  to  the  same  extent  as  a  judgment  at  law,  either  by  an 
express  provision  to  that  effect,  or  by  a  general  declaration 
that  such  a  decree  shall  have  the  same  force  and  effect  as  a 
legal  judginent.^^ 

The  judgment  must,  by  the  law  of  most  of  the  states,  be 
docketed  or  recorded,  in  order  to  constitute  a  lien,  and  there 
is  usually  a  further  requirement  that  it  be  indexed.  The 
statutory  requirements  in  these  respects  must  be  strictly  fol- 
lowed, and  a  failure  to  comply  therewith  will  usually  render 
the  judgment  nugatory  as  against  a  subsequent  ho7ia  fide  pur- 
chaser of  the  land.^"  Such  provisions  are,  however,  usually 
regarded  as  intended  merely  to  protect  persons  without  notice 
of  the  judgment,  so  that  the  failure  to  comply  therewith  will 
not  affect  the  lien  as  against  subsequent  purchasers  or  lienors 
with  notice  of  the  judgment.^^ 

50  Act  Aug.  1,  1888  (25  Stat.  357).  See  Cooke  v.  Avery,  147  U.  S. 
375. 

51  Eames  v.  Germania  Turn  Verein,  74  111.  54;  Hohman's  Appeal, 
127  Pa.  St.  209;  Battle  v.  Bering,  7  Yerg.  (Tenn.)  529,  27  Am.  Dec. 
526;  Conard  v.  Everich,  50  Ohio  St.  476,  40  Am.  St.  Rep.  679;  Myers 
V.  Hewitt,  16  Ohio,  449;  Linn  v.  Patton,  10  W.  Va.  187.  In  Blake  v. 
Heyward,  1  Bailey,  Eq.  (S.  C.)  208,  it  was  held  that  the  same  result 
followed  from  a  statute  authorizing  an  execution  to  issue  under 
an  equity  decree. 

52  As  to  docketing,  see  Roll  v.  Rea,  57  N.  J.  Law,  647 ;  Reid  v.  Mc- 
Gowan,  28  S.  C.  74;  Flanagan  v.  Oberthier,  50  Tex.  379;  Duncan  v. 
Custard,  24  W.  Va.  730;  Josselyn  v.  Stone,  28  Miss.  753;  Wood  v. 
Reynolds,  7  Watts  &  S.  (Pa.)  406;  Berry  v.  Reed,  73  Ind.  235;  Bush 
V.  Paris,  30  U.  S.  App.  626,  71  Fed.  770,  18  C.  C.  A.  315.  As  to  in- 
dexing, see  Metz  v.  State  Bank  of  Brownville,  7  Neb.  165;  Aetna  Life 
Ins.  Co.  V.  Hesser,  77  Iowa,  381,  14  Am.  St.  Rep.  297;  Hughes  v. 
Lacock,  63  Miss.  112;  Dewey  v.  Sugg,  109  N.  C.  328;  Grouse  v.  Mur- 
phy, 140  Pa.  St.  335,  23  Am.  St.  Rep.  232;  Gullett  Gin  Co.  v.  Oliver, 
78  Tex.  182. 

53  York  Bank's  Appeal,  36  Pa.  St.  458;    Craig  v.  Sebrell,  9  Grat. 

(i:307) 


§   570  REAL  PROPERTY.  [Ch.  37 

Lands  and  interests  therein  subject  to  the  lien. 

The  lien  of  a  judgment  usually  extends  only  to  land  within 
the  jurisdiction  of  the  court  rendering  the  judgment, — that 
is,  it  is  ordinarily  restricted  to  the  limits  of  the  particular 
county.^^  In  most  states,  however,  there  are  statutory  pro- 
visions for  extending  the  lien  to  land  in  another  county  by 
docketing  or  recording  therein  a  transcript  of  the  judg- 
ment.^^ 

An  estate  for  life  is  subject  to  the  lien  as  being  "real  es- 
tate" or  "real  property,"  within  the  statutes  creating  the 
lien.^^  Whether  a  leasehold  estate  is  subject  to  the  lien  is 
determined  differently  in  different  states,  on  a  construction 
of  the  state  statute.^ '^ 

An  equitable  estate  or  interest  in  land  was  not  subject  to 
the  lien  of  a  judgment  under  the  early  English  statute  be- 
fore referred  to,  and  is  not,  at  the  present  day,  regarded  as 
so  subject,  in  the  absence  of  a  statutory  provision  to  the  con- 

(Va.)  131;  Gushing  v.  Edwards,  68  Iowa,  145.  Contra,  Glasscock  t. 
Stringer  (Tex.  Civ.  App.)  32  S.  W.  920. 

54Sapp  v.  Wightman,  103  III.  150;  Kerngood  v.  Davis,  21  S.  C.  183; 
Alsop  V.  Moseley,  104  N.  C.  60;  Baker  v.  Chandler,  51  Ind.  85;  1 
Black,  Judgments,  §§  417,  418. 

55  Farmers'  Bank  of  Maryland  v.  Heighe,  3  Md.  357;  Firebaugh  v. 
Ward,  51  Tex.  409;  Yackle  v.  Wightman,  103  111.  169;  Hubbard  v. 
Jones,  61  Kan.  722;  Donner  v.  Palmer,  23  Cal.  40;  Stewart  v.  Wheel- 
ing &  L.  E.  Ry.  Co.,  53  Ohio  St.  151;  Seaton  v.  Hamilton,  10  Iowa, 
394;  Bergen  v.  State,  58  Miss.  623;  Lamb  v.  Sherman,  19  Neb.  681. 

56Verdin  v.  Slocum,  71  N.  Y.  345;  Anderson  v.  Tydings,  8  Md.  427, 
63  Am.  Dec.  708;  Lancaster  County  Bank  v.  Stauffer,  10  Pa.  St.  398; 
Bridge  v.  Ward,  35  Wis.  687. 

57  That  a  leasehold  estate  is  not  subject  to  the  lien,  see  Bismark 
Building  &  Loan  Ass'n  v.  Bolster,  92  Pa.  St.  123;  Ely  v.  Beaumont,  5 
Serg.  &  R.  (Pa.)  124.  See,  also.  Merry  v.  Hallet,  2  Cow.  (N.  Y.)  497. 
Contra,  First  Nat.  Bank  of  Davenport  v.  Bennett,  40  Iowa,  537; 
Northern  Bank  of  Kentucky  v.  Roosa,  13  Ohio,  334.  The  statute 
sometimes  expressly  provides  for  a  lien  on  all  terms  which  have 
more  than  a  certain  number  of  years  to  run. 

(1308) 


qIj^  37-1  STATUTORY  LIENS.  §   570 

trary.'^^  In  some  states,  however,  a  statute  imposing  the 
lien  on  the  ''real  estate"  or  "real  property"  of  the  debtor  is 
considered  to  include  equitable  as  well  as  legal  interests,  and 
express  provisions  to  the  same  effect  are  quite  usual.^^  The 
judgment  creditor,  moreover,  apart  from  statute,  may,  after 
return  of  execution  unsatisfied,  file  a  bill  to  obtain  satisfac- 
tion of  the  judgment  out  of  an  equitable  interest,  and,  upon 
so  doing,  the  judgment  becomes  effective  thereon  as  against 
any  incumbrances  or  conveyances  subsequent  to  the  date  of 
such  filing.®*^  Under  statutes  subjecting  equitable  interests 
to  the  lien,  mortgaged  land  belonging  to  the  judgment  debtor, 
the  "equity  of  redemption,"  is  subject  to  the  lien,  even  where 
the  legal  view  of  a  mortgage  is  adopted,  and,  in  states  w^here 
the  mortgagee  has  merely  a  lien  without  the  legal  title,  the 
mortgagor's  interest  in  the  land  is  so  subject  as  a  legal  es- 
tate.^i 

When  land  is  owned  concurrently  by  two  or  more  persons, 
the  undivided  interest  of  each  is  subject  to  the  lien  of  a 

esMorsell  v.  First  Nat.  Bank  of  Washington,  91  U.  S.  361;  Freed- 
man's  Savings  &  Trust  Co.  v.  Earle,  110  U.  S.  710;  Nessler  v.  Neher, 
18  Neb.  649;  Sipley  v.  Wass,  49  N.  J.  Eq.  463;  Smith  v.  Ingles,  2  Or. 
43;  Terrell  v.  Prestel,  68  Ind.  86;  Dixon  v.  Dixon,  81  N.  C.  323.  In 
Pennsylvania  a  different  view  has  been  taken,  for  reasons  growing 
out  of  the  want  of  a  court  of  equity.  Auwerter  v.  Mathiot,  9  Serg. 
&  R.  (Pa.)   402. 

59  See  Niantic  Bank  v.  Dennis,  37  111.  381;  Cook  v.  Dillon,  9  Iowa, 
407,  74  Am.  Dec.  354;  McKeithan  v.  Walker,  66  N.  C.  95;  Maxwell 
v.  Vaught,  96  Ind.  141. 

60  Freedman's  Savings  &  Trust  Co.  v.  Earle,  110  U.  S.  710;  Lee  v. 
Stone,  5  Gill  &  J.  (Md.)  1,  23  Am.  Dec.  589;  Roach's  Ex'rs  v.  Ben- 
nett, 24  Miss.  98;  Coutts  v.  Walker,  2  Leigh  (Va.)  268.  See  Ware  v. 
Delahaye,  95  Iowa,  667. 

eiPahlman  v.  Shumway,  24  111.  127;  Cook  v.  Dillon,  9  Iowa,  407, 
74  Am.  Dec.  354;  Trimble  v.  Hunter,  104  N.  C.  129;  McGuire  v.  Wil- 
kinson, 72  Mo.  199;  Macauley  t.  Smith,  132  N.  Y.  524;  McKeithan  v. 
Walker,  66  N.  C.  95;  Kinports  v.  Boynton,  120  Pa.  St.  306,  6  Am.  St. 
Rep.  706.  And  see  Morsell  v.  First  Nat.  Bank  of  Washington,  91 
U.  S.  357. 

(1309) 


§  570  REAL  PROPERTY.  [Ch.    37 

judgment  against  him  to  the  same  extent  as  an  interest  in 
severalty.  In  case  of  partition,  the  lien  attaches  to  the  spe- 
cific land  allotted  to  the  judgment  debtor,^^  or,  in  case  of  sale 
for  purposes  of  partition,  to  the  fund  obtained  thereby.^^ 

The  legal  title  of  a  vendor  of  land  who  has  not  yet  exe- 
cuted a  conveyance  is  subject  to  the  lien  of  a  judgment  against 
him,  to  the  extent  of  the  purchase  money  still  unpaid, — that 
is,  the  lien  binds  the  land  so  far  as  the  rights  of  the  vendee 
will  not  be  affected  thereby.''^  If  all  the  purchase  money 
has  been  paid,  the  vendor  has  merely  a  bare  legal  title,  which 
is  not  subject  to  the  lien;*^^  and  if  part  only,  or  if  none, 
has  been  paid,  the  vendor's  title  is  subject  to  the  lien,  which 
is,  however,  liable  to  be  divested  by  the  payment  of  whatever 
remains  due  by  the  vendee. ^^ 

The  equitable  interest  of  the  vendee  of  land  who  has  not 
yet  received  a  conveyance  is,  of  course,  not  subject  to  the 
lien  in  those  states  in   which  no  equitable  interests   are  so 

62  Bavington  v.  Clarke,  2  Pen.  &  W.  (Pa.)  124,  21  Am.  Dec.  432; 
Emson  v.  Polhemus,  28  N.  J.  Eq.  439,  6  Gray's  Cas.  679;  Inhabitants 
of  Argyle  v.  Dwinel,  29  Me.  45. 

63  Eldridge  v.  Post,  20  Fla.  579;  Garvin  v.  Garvin,  1  Rich.  (S.  C.)  55. 
fiiCourtnay  v.  Parker,  21  Neb.  582;    Lefferson  v.  Dallas,  20  Ohio 

St.  68;  Chahorn  v.  Hollenback,  16  Serg.  &  R.  (Pa.)  425,  16  Am.  Dec. 
587;  Meyer  v.  Hinman,  13  N.  Y.  180;  O'Neil  v.  Wabash  Ave.  Baptist 
Church  See,  4  Biss.  482,  Fed.  Cas.  No.  10,531;  Ware  v.  Jackson,  19 
Ga.  452. 

65  Baker  v.  Thompson,  36  Minn.  314;  Stannis  v.  Nicholson,  2  Or. 
335;  Snyder  v.  Martin,  17  W.  Va.  276,  41  Am.  Rep.  670;  Thomas  v. 
Kennedy,  24  Iowa,  397,  95  Am.  Dec.  740. 

60  Shinn  v.  Taylor,  28  Ark.  523;  Hampson  v.  Edelen,  2  Har.  &  J. 
(Md.)  64,  3  Am.  Dec.  530;  Minneapolis  &  St.  L.  Ry.  Co.  v.  Wilson, 
25  Minn.  382;  Money  v.  Dorsey,  7  Smedes  &  M..  (Miss.)  15;  Moyer 
V.  Hinman,  13  N.  Y.  180;  Minns  v.  Morse,  15  Ohio,  568,  45  Am.  Dec. 
590;  Hurt's  Adm'x  v.  Prillaman,  79  Va.  257;  Kraner  v.  Chambers, 
92  Iowa,  681.  But,  under  particular  statutes,  the  failure  to  record 
the  contract  may  defeat  the  vendee's  rights  as  against  the  judgment 
lien.  Young  v.  Devries,  31  Grat.  (Va.)  304;  Anderson  v.  Nagle,  12 
W.  Va.  98. 
(1310) 


^1j.  37]  STATUTORY  LIENS.  §   570 

subject.'"^  In  states  where  the  judginent  lien  does  exist  upon 
equitable  as  well  as  legal  interests,  the  vendee's  interest  is 
subject  to  the  lien  to  the  extent  to  which  the  purchase  money 
lias  been  paid, — that  is,  the  lien  on  his  interest  is  subject  to 
the  prior  right  of  the  vendor  to  payment  of  whatever  part  of 
the  price  remains  unpaid. ""* 

Not  only  lands  which  belonged  to  the  judgment  debtor  at 
the  time  of  the  rendition  or  docketing  of  the  judgment,  but 
also  those  thereafter  acquired  by  him,  are  subject  to  the  lien 
in  all  but  two  of  the  states.^'' 

Priorities. 


The  W'hole  purpose  and  effect  of  a  judgment  lien  is  to  ren- 
der the  lands  of  the  debtor  liable  to  execution  under  the 
judgment,  without  reference  to  any  rights  subsequently  ac- 
quired by  other  persons,  and  that  it  does  have  such  effect  has 
never  been  questioned."'^  The  question,  however,  whether  a 
judg-ment  lien  can  bind  the  land  as  against  rights  acquired  by 
others  before  the  rendition  of  the  judgment  is  a  subject  as  to 
which  the  law  of  the  various  states  is  not  wholly  in  accord. 

67  Evans  v.  Feeny,  81  Ind.  532;  Roddy  v.  Elam,  13  Rich.  Law  (S. 
C.)  343;  Whittington  v.  Simmons,  32  Ark.  377. 

68  Rand  V.  Garner,  75  Iowa,  311;  Pugh  v.  Good,  3  Watts  &  S.  (Pa.) 
56,  37  Am.  Dec.  534;  Adams  v.  Harris,  47  Miss.  144.  See  Stewart  v. 
Berry,  84  Ga.  177. 

69  Ja^lvson  V.  Bank  of  United  States,  5  Cranch,  C.  C.  1,  Fed.  Gas. 
No.  7,131;  Wales  v.  Bogue,  31  111.  464;  Ware  v.  Delahaye,  95  Iowa, 
667;  Colt  V.  Du  Bois,  7  Neb.  391;  Moore  v.  Jordan,  117  N.  C.  86,  53 
Am.  St.  Rep.  576;  Barron  v.  Thompson,  54  Tex.  235;  Greenway  v. 
Cannon,  3  Humph.  (Tenn.)  177,  39  Am.  Dec.  161. 

In  Ohio  the  lien  does  not  attach  to  after-acquired  lands  (Smith  v. 
Hogg,  52  Ohio  St.  527),  nor  does  it  in  Pennsylvania,  except  in  the 
case  of  a  judgment  against  a  vendee  subsequently  acquiring  the 
legal  title  (Waters'  Appeal,  35  Pa.  St.  523,  78  Am.  Dec.  354). 

70  See  Fawcetts  v.  Kimmey,  33  Ala.  261;  Clark  v.  Merriam,  83  Ind. 
58;  Hoppock  v.  Shober,  69  N.  C.  153;  Anderson  v.  Neff,  11  Serg.  &  R. 
(Pa.)  208;  Trapnall  v.  Richardson,  13  Ark.  543,  58  Am.  Dec.  338; 
Loomis  V.  Second  German  Building  Ass'n,  37  Ohio  St.  392. 

(1311) 


8   570  REAL  PROPERTY.  [Ch.  37 

As  a  general  rule,  and  subject  to  the  statements  in  the  next 
paragraph,  the  lien  of  a  judgment  is  inferior  to  prior  equities, 
— that  is,  a  court  of  equity  will  protect  all  equitable  rights 
which  may  have  accrued  before  the  attachment  of  the  lien.'^^ 
It  is  on  this  principle  that  the  rights  of  a  vendee  under  an 
executory  contract  of  sale  are  regarded  as  superior  to  the 
lien;''^^  and  likewise  the  rights  of  a  cestui  que  trust  are  up- 
held as  against  a  lien  under  a  judgment  against  the  trusteed ^ 
So,  an  equitable  lien  in  favor  of  a  grantor  for  a  part  of  the 
price  has  been  held  to  be  superior  to  a  lien  subsequently  at- 
taching under  a  judgment  against  the  grantee  ;''''*  and  the 
same  principle  would  seem  to  apply  in  the  case  of  any  other 
equitable  lien.'^^ 

While,  by  the  well-settled  principles  of  equity,  in  thus  giv- 
ing protection  to  prior  equities  as  against  the  judgment  lien, 
it  is  immaterial  that  the  judgment  creditor  had,  before  ob- 
taining his  judgment,  no  notice,  express  or  implied,  of  the 
existence  of  such  equities, ^'^  in  many  states  the  adoption  of 

71  Brown  v.  Pierce,  7  Wall.  (U.  S.)  205;  Monticello  Hydraulic  Co. 
V.  Longhry,  72  Ind.  562;  Frazer  v.  Thatcher,  49  Tex.  26;  White  v. 
Denman,  1  Ohio  St.  110;  Shirk  v.  Thomas,  121  Ind.  147,  16  Am.  St. 
Rep.  381;  Goodell  v.  Blumer,  41  Wis.  436;  2  Pomeroy,  Eq.  Jur.  § 
721;  1  Black,  Judgments,  §  445;  2  Freeman,  Judgments,  §  357. 

'-  See  ante,  note  66. 

73Withnell  v.  Courtland  Wagon  Co.  (C.  C.)  25  Fed.  372;  Hays  v. 
Regar,  102  Ind.  524;  Thomas  v.  Kennedy,  24  Iowa,  397,  95  Am.  Dec. 
740;   Denzler  v.  O'Keefe,  34  N.  J.  Eq.  361. 

74  Walton  V.  Hargroves,  42  Miss.  18,  97  Am.  Dec.  429;  Ringgold 
V.  Bryan,  3  Md.  Ch.  488;  Bowman  v.  Faw,  5  Lea  (Tenn.)  472;  Mess- 
more  V.  Stephens,  83  Ind.  524.  Contra,  Allen  v.  Loring,  34  Iowa, 
499;  Johnson  v.  Cawthorn,  21  N.  C.  32. 

75  Wharton  v.  Wilson,  60  Ind.  591;  Blankenship  v.  Douglas,  26 
Tex.  225,  82  Am.  Dec.  608;  Martin  v.  Nixon,  92  Mo.  26;  Galway  v. 
Mulchow,  7  Neb.  285;  Dwight  v.  Newell,  3  N.  Y.  185;  2  Pomeroy,  Eq. 
Jur.  §  721. 

76Rodgers  v.  Bonner,  45  N.  Y.  379;  Doswell  v.  Adler,  28  Ark.  82; 
Wharton  v.  Wilson,  60  Ind.  591;  Valentine  v.  Seiss,  79  Md.  187.  And 
see  cases  cited  in  the  four  preceding  notes. 

(1312) 


(^jj    37J  STATUTORY  LIENS.  §   570 

the  recording  laws  has  given  rise  to  a  different  view,  it  being 
held  that  the  lien  takes  precedence  of  a  prior  equity  which 
does  not  appear  of  record,  and  of  which  the  creditor  has  no 
actual  or  constructive  notice.'^'^  So,  in  some  states,  holders 
of  judgment  liens  are  regarded  as  within  the  protection  of 
the  recording  laws,  with  the  result  that  a  conveyance  of  the 
land,  or  a  mortgage  thereof,  made  by  the  judgment  debtor, 
if  not  recorded,  is  subordinate  to  the  lien  of  a  judgment  sub- 
sequently rendered  in  favor  of  a  person  without  notice  of  the 
prior  conveyance  or  mortgage. '^^  In  other  states,  however, 
the  judgment  creditor  cannot  take  advantage  of  the  failure 
to  record  a  prior  conveyance  or  mortgage,  the  equity  of  the 
prior  gi'antee  or  mortgagee  being  regarded  as  superior.'^^ 
But  even  in  states  in  which  the  judgment  lien  is  thus  within 
the  protection  of  the  recording  laws,  it  is  usually  held  that 
the  failure  to  record  the  conveyance  or  mortgage  is  imma- 
terial if  the  judgment  creditor  had  notice  thereof  at  the  time 
of  recovery  of  judgment,  the  requirement  of  record  being 
regarded  as  merely  for  the  purpose  of  furnishing  notice. ^^ 

77  2  Pomeroy,  Eq.  Jur.  §§  722,  723;  Buchanan  v.  Kimes,  2  Baxt. 
(Tenn.)  275;  Humphrey  v.  Copeland,  54  Ga.  543;  Massey  v.  West- 
cott,  40  111.  160;  Cutler  v.  Ammon,  65  Iowa,  281;  Wilcox  v.  Leomin- 
8ter  Nat.  Bank,  43  Minn.  541,  19  Am.  St.  Rep.  259. 

78  McCoy  V.  Rhodes,  11  How.  (U.  S.)  131;  Boston  v.  Cummins,  16 
Ga.  102,  60  Am.  Dec.  717;  Town  of  Tarboro  v.  Micks,  118  N.  C.  162; 
Heermans  v.  Montague  (Va.)  20  S.  E.  899;  King  v.  Paulk,  85  Ala. 
186;  Grace  v.  Wade,  45  Tex.  522;  Berryhill  v.  Smith,  59  Minn.  285; 
Hunt  V.  Swayze,  55  N.  J.  Law,  33;  2  Pomeroy,  Eq.  Jur.  §  722;  Manly 
V.  Pettee,  38  111.  128;   Semple  v.  Burd,  7  Serg.  &  R.   (Pa.)   286. 

79  Pierce  v.  Spear,  94  Ind.  127;  Seevers  v.  Delashmutt,  11  Iowa, 
174,  77  Am.  Dec.  139;  Moorman  v.  Gibbs,  75  Iowa,  537;  Holden  v. 
Garrett,  23  Kan.  98;  Wilcoxon  v.  Miller,  49  Cal.  194;  Donovan  v. 
Simmons,  96  Ga.  340;  Schroeder  v.  Gurney,  73  N.  Y.  430;  Knell  v. 
Green  Street  Building  Ass'n,  34  Md.  67;  Sappington  v.  Oeschli,  49 
Mo.  244. 

80  Northwestern  Land  Co.  v.  Dewey,  58  Minn.  359;  Hutchinson  v. 
Bramhall,  42  N.  J.  Eq.  372;  Williams  v.  Tatnall,  29  111.  553;  Britton's 
Appeal,  45  Pa.  St.  172;  Wyatt  v.  Stewart,  34  Ala.  716,  721;  2  Pome- 

(1313) 

Real  Prop.— 83. 


§   571  REAL  PROPERTY.  [Ch.  37 

In  the  case  of  a  mortgage  given  for  the  price  of  land  as  a  part 
of  the  transaction  of  purchase,  no  beneficial  interest  to  which 
the  lien  can  attach  is  considered  to  vest  in  the  mortgagor, 
as  against  the  mortgagee,  and  it  is  immaterial  that  the  mort- 
gage is  given,  not  to  the  vendor,  but  to  a  third  person,  who 
advances  the  purchase  money.* ^ 

At  common  law,  a  judgment  related  back  to,  and  was  re- 
garded as  rendered  upon,  the  first  day  of  the  term.  This  rule 
still  applies  in  some  states,  so  as  to  give  the  lien  of  the  judg- 
ment precedence  over  a  prior  conveyance  made  during  the 
tenn.*"  More  generally,  however,  the  lien  attaches  either  at 
the  time  of  the  rendition  of  the  judgment*^  or  at  the  time  of 
its  docketing  or  record.*'^ 

fc^  571.    Attachment  liens. 

In  most,  if  not  all,  of  the  states,  there  are  provisions  for 
the  issuance  of  a  writ  of  "■'attachment"  as  auxiliary  to  an 
action  for  the  recovery  of  money,  and  in  advance  of  the 
trial  thereof,  the  effect  of  such  process  being  to  give  the  plain- 
tiff a  lien  iTpon  such  property  of  the  defendant  as  may  be 
levied  on  under  the  writ.     In  most  jurisdictions  this  writ 

roy,  Eq.  Jur.  §  723.     Contra,  Coward  v.  Culver,  12  Heisk.    (Tenn.) 
.540;  Mayham  v.  Coombs,  14  Ohio,  428. 

81  Curtis  V.  Root,  20  111.  53;  Ransom  v.  Sargent,  22  Kan.  516;  Brad- 
ley V.  Byran,  43  N.  J.  Eq.  396;  Haywood  v.  Nooney,  3  Barb.  (N.  Y.) 
>643;  Cake's  Appeal,  23  Pa.  St.  186,  62  Am.  Dec.  328;  Laidley  v. 
Aiken,  80  Iowa,  112,  20  Am.  St.  Rep.  408;  Stewart  v.  Smith,  36  Minn. 
«2,  1  Am.  St.  Rep.  651. 

82  Norfolk  State  Bank  v.  Murphy,  40  Neb.  735;  Clements  v.  Berry, 
11  How.  (U.  S.)  398;  Kell-erman  v.  Aultman  (C.  C.)  30  Fed.  888; 
Davis  V.  Messenger,  17  Ohio  St.  231;  Jackson  v.  Luce,  14  Ohio,  514; 
Urbana  Bank  v.  Baldwin,  3  Ohio,  65. 

83  Bailey  v.  Mizell,  4  Ga.  123;  Smith  v.  Lind,  29  111.  24.  See  1 
Black,  Judgments,  §  443. 

8*  Elwell  V.  Hitchcock,  41  Kan.  130;   Reeves  v.  Johnson,  12  N.  J. 
Law,  29;   Pirebaugh  v.  Ward,  51  Tex.  409;   Bailey  v.  Bailey,  93  Ga. 
■768. 
0314) 


Ch.  37]  STATUTORY  LIENS.  §   57I 

can  be  obtained  only  for  certain  causes,  specifically  named 
in  the  statute,  usually  these  being  such  as  render  it  probable 
that  property  of  the  defendant  sufficient  to  satisfy  the  judg- 
ment may  not  be  legally  accessible  for  the  satisfaction  of 
the  judgment  unless  immediately  seized.  Thus  it  is  fre- 
quently provided  that  an  attachment  may  issue  when  the  de- 
fendant has  absconded,  or  is  a  nonresident,  when  he  has 
made,  or  intends  to  make,  a  fraudulent  conveyance  of  his 
property,  or  when  he  is  about  to  remove  property  from  the 
state.^^  In  the  New  England  states,  however,  there  are  no 
such  restrictions  upon  the  issuance  of  an  attachment,  and  as 
a  rule  it  issues  as  of  course  upon  the  direction  of  the  plain- 
tiff. The  result  is  that  a  creditor  may,  in  these  states,  usu- 
ally establish  a  lien  upon  the  defendant's  property  from  the 
time  of  the  commencement  of  the  suit,  and  this  has  appar- 
ently been  regarded  as  sufficient  for  his  protection,  without 
the  enactment  of  any  laws  providing  that  his  judgment,  when 
obtained,  shall  be  a  lien  on  the  debtor's  land. 

In  the  absence  of  a  statute  otherwise  providing,  the  lien 
of  an  attachment  does  not  exist  until  the  officer  actually  levies 
under  the  writ  upon  property  of  the  defendant,  and  it  ex- 
tends only  to  the  property  so  levied  on.^^  This  levy  does 
not,  in  the  case  of  land,  involve  an  actual  seizure  thereof, 
nor  any  interference  with  the  possession,  it  being  usually 
sufficient  that  the  officer  indorse  on  the  writ  that  he  has  at- 
tached the  land,^'   describing  it  with  such  certainty  as  is 

85  Drake,  Attachment,  §  38  et  seq.;  Kneeland,  Attachment,  cc. 
8-11. 

86  See  Cooper  v.  Reynolds,  10  Wall.  (U.  S.)  308;  Schacklett's  Ap- 
peal, 14  Pa.  St.  326;  Gray's  Adm'r  v.  Patton's  Adm'r,  13  Bush  (Ky.) 
625;  Riordan  v.  Britton,  69  Tex.  198;  Taffts  v.  Manlove,  14  Cal. 
47,  73  Am.  Dec.  610. 

87  Wood  V.  Weir,  5  B.  Mon.  (Ky.)  544;  Boyle  v.  Ferry,  12  La.  Am. 
425;  Perrin  v.  Leverett,  13  Mass.  130;  Burkhardt  v.  McClellan,  1 
Abb.  Dec.  (N.  Y.)  263;  Hancock  v.  Henderson,  45  Tex.  479;  Lackey 
V.  Seibert,  23  Mo.  85. 

(1315) 


§   571  REAL  PROPERTY.  [Ch.  S 

necessary  in  the  case  of  a  conveyance.*'^  In  some  states,. 
moreover,  the  return  of  the  officer  must  be  filed  or  recorded 
in  a  particular  office  in  order  that  the  attachment  may  bind 
the  land  as  against  adverse  rights  subsequently  accruing.*^ 

An  attachment  may  usually  be  levied  upon  estates  in  land 
of  almost  every  character, — both  those  of  freehold  and  those 
less  than  freehold. °^  The  right  to  subject  equitable  interests 
to  attachment  differs  in  dift'erent  states.^^  Mortgaged  land 
is  subject  to  attachment  in  many  states,  either  as  constituting 
a  legal  interest,  or  by  force  of  a  special  statute.^^  The  in- 
terest of  a  mortgage  before  foreclosure,  being  a  mere  chose 
in  action,  is  usually  not  attachable.^^ 

As  a  general  rule,  the  attachment  lien  binds  only  such  in- 
terest as  the  debtor  has  at  the  time  of  the  levy,  and  is  subject 
to  all  rights  or  equities  which  may  have  accrued  in  favor  of 

88  Biggs  V.  Blue,  5  McLean,  148,  Fed.  Cas.  No.  1,403;  Roberts  v. 
Bourne,  23  Me.  165,  39  Am.  Dec.  614;  Henry  v.  Mitchell,  32  Mo.  512; 
Howard  v.  Daniels,  2  N.  H.  137;  Grier  v.  Rhyne,  67  N.  C.  338. 

89  See  Wheaton  v.  Neville,  19  Cal.  41 ;  Raynolds  v.  Ray,  12  Colo. 
108;  Worcester  Nat.  Bank  v.  Cheeney,  87  111.  602;  Coffin  v.  Ray, 
1  Mete.  (Mass.)  212;  Bryant  v.  Duffy,  128  Mo.  18. 

90Waples,  Attachment  (2d  Ed.)  §  246;  Drake,  Attachment,  §  232 
et  seq.;  Kneeland,  Attachment,  §  361. 

01  That  an  equitable  interest  is  not  subject  to  attachment,  see 
Lowry  v.  Wright,  15  111.  95;  Shoemaker  v.  Harvey,  43  Neb.  75;  Black- 
burn v.  Clarke,  85  Tenn.  506.  That  equitable  interests  are  so  sub- 
ject, see  Fish  v.  Fowlie,  58  Cal.  373;  Davenport  v.  Lacon.  17  Conn. 
278;  Bullene  v.  Hiatt,  12  Kan.  98;  Bailey  v.  Warner,  28  Vt.  87;  Mc- 
Camant  v.  Batsell,  59  Tex.  363.  So,  in  some  states,  the  interest  of 
the  vendee  under  a  contract  of  sale  is  attachable.  Johnson  v.  Bell, 
58  N.  H.  395;  Higgins  v.  McConnell,  130  N.  Y.  482;  Whittier  v. 
Vaughan,  27  Me.  301. 

92  Reed  V.  Bigelow,  5  Pick.  (Mass.)  281;  De  Wolf  v.  Murphy,  11 
R.  I.  630;  Godfrey  v.  Monroe,  101  Cal.  224;  Eastman  v.  Knight,  35 
N.  H.  551;  Hawes'  Appeal,  50  Conn.  317. 

93McGurren  v.  Garrity,  68  Cal.  566;   McLaughlin  v.  Shepherd,  32 
Me.  143,  52  Am.  Dec.  646;  Marsh  v.  Austin,  1  Allen  (Mass.)  235;  Co- 
lumbia Bank  v.  Jacobs,  10  Mich.  349,  81  Am.  Dec.  792;   Barrett  v. 
Sargeant,  18  Vt.  365. 
(1316) 


^l3.  37]  STATUTORY  LIENS.  §   571 

Other  persons  before  the  date  of  the  levy.^-*  Accordingly, 
apart  from  any  question  of  notice,  an  attachment  against  a 
trustee  cannot  affect  the  rights  of  a  cestui  que  ti-ust^^  and  a 
conveyance  or  mortgage  takes  precedence  of  an  attachment 
subsequently  levied.^^  In  some  states,  however,  attaching 
creditors,  like  judgment  creditors,^'^  are  within  the  protection 
of  the  recording  acts,  and  are  consequently  not  affected  by 
prior  equities,  incumbrances,  or  conveyances,  which  do  not 
appear  of  record,  and  of  which  they  have  no  notice.^® 

The  attachment  lien  is  perfected  by  a  judgment  for  plain- 
tiff in  the  action  to  which  the  attachment  is  auxiliary,  he 
then  having  a  lien  on  the  property  attached,  which  he  may 
enforce  by  a  sale  under  execution,  or,  in  some  states,  by  a 
special  proceeding  under  the  order  of  the  court.  The  judg- 
ment should  specifically  recognize  the  attachment  lien,  and 
in  some  states  its  failure  so  to  do  involves  a  loss  of  the  lien.^^ 

A  sale  under  execution  upon  the  judgment  passes  to  the 
purchaser  the  interest  of  the  judgment  debtor  as  it  existed  at 
the  time  of  the  levy  of  the  attachment,  free  from  any  ad- 

84  Tennant  v.  Watson,  58  Ark.  252;  Columbia  Bank  v.  Jacobs,  10 
Mich.  349,  81  Am.  Dec.  792;  Furman  v.  McMillan,  2  Lea  (Tenn.) 
121;  Depeyster  v.  Gould,  3  N.  J.  Eq.  474,  29  Am.  Dec.  723;  Jamison 
V.  Miller,  27  N.  J.  Eq.  586;  Harrall  v.  Gray,  10  Neb.  186;  Bateman 
V.  Backus,  4  Dak.  433;  Hoag  v.  Howard,  55  Cal.  564;  Shirk  v.  Thom- 
as, 121  Ind.  147,  16  Am.  St.  Rep.  381;  Hope  v.  Blair,  105  Mo.  85,  24 
Am.  St.  Rep.  366. 

85  Hart  V.  Farmers'  &  Mechanics'  Bank,  33  Vt.  252;  Houghton  v. 
Davenport,  74  Me.  590;  Haynes  v.  Jones,  5  Mete.  (Mass.)  292;  Dow 
V.  Say  ward,  14  N.  H.  9;  Tucker  v.  Vandermark,  21  Kan.  263. 

00  See  cases  cited  in  note  94. 

97  Ante,  §  570. 

08  Woodward  v.  Sartwell,  129  Mass.  210;  Houston  v.  McCluney,  8 
W.  Va.  135;  Roberts  v.  Bourne,  23  Me.  165.  39  Am.  Dec.  614;  Wise 
V.  Tripp,  13  Me.  9;  Bigelow  v.  Topliff,  25  Vt.  273,  00  Am.  Dec.  264; 
Carr  v.  Thomas,  18  Fla.  736;  Jerome  v.  Carbonate  Nat.  Bank  of 
Leaavllle.  22  Colo.  37. 

99  See  Waples,  Attachment,  §  893  et  seq. 

(1317) 


^   572  REAL  PROPERTY.  [Ch.    37 

verse  rights  or  claims  which  may  have  accrued  since  such 
levy.ioo 

§  572.     Execution  liens. 

In  some  states,  the  delivery  to  the  sheriff  of  a  writ  of  ex- 
ecution under  a  judgment  creates  a  lien  on  such  property  of 
the  judgment  defendant  as  is  subject  to  levy  under  the  exe- 
cution.^ ^^  In  most  states,  however,  the  mere  delivery  of 
the  writ  to  the  sheriff  does  not  create  any  lien,  and  a  levy  un- 
der the  writ  is  necessary  to  make  the  claim  of  the  creditor 
effective  as  against  adverse  claims  to  and  equities  in  the 
debtor's  property.^ ^^ 

So  far  as  a  lien  already  exists  by  force  of  the  judgment, 
any  additional  lien  by  virtue  of  the  execution  is  usually  of 
no  value,^°^  and,  in  view  of  the  fact  that  the  former  lien  is 
recognized  in  most  of  the  states,  there  seems  to  be  but  slight 
occasion  for  the  consideration  of  an  execution  lien  in  con- 
nection with  the  law  of  land.^*^^ 

The  lien  of  an  execution,  whether  arising  from  the  issue 
or  the  levy  of  an  execution,  is  superior  to  all  rights  subse- 

100  Mattocks  V.  Farrington,  2  Hask.  331,  Fed.  Cas.  No.  9,298;  Nason 
V.  Grant,  21  Me.  160;  Lackey  v.  Seibert,  23  Mo.  85. 

101  Dailey  v.  Burke,  28  Ala.  328;  Whitehead  v.  Woodruff,  11  Bush 
(Ky.)  209;  Doe  d.  McLean  v.  Upchurch,  6  N.  C.  353;  Williams  v. 
Nellor,  12  Colo.  1;  2  Freeman,  Executions,  §  200. 

102  See  Wilson's  Appeal,  90  Pa.  St.  370;  Anderson  v.  Taylor,  6 
Lea  (Tenn.)  382;  Blood  v.  Light,  38  Cal.  649,  99  Am.  Dec.  441;  Smith 
V.  Hogg,  52  Ohio  St.  527;  Sawyers  v.  Sawyers,  93  N.  C.  321;  Mills- 
paugh  V.  Mitchell,  8  Barb.  (N.  Y.)  333;  Reeves  v.  Sebern,  16  Iowa, 
234,  85  Am.  Dec.  513;  Albrecht  v.  Long,  25  Minn.  163;  2  Freeman, 
Executions,  §  202. 

103  See  Bagley  v.  Ward,  37  Cal.  121,  99  Am.  Dec.  256;  Riland  v. 
Eckert,  23  Pa.  St.  215;  Mclntyre  v.  Sanford,  9  Daly  (N.  Y.)  21;  Far- 
rier V.  Houston,  100  N.  C.  369,  6  Am.  St.  Rep.  597. 

104  In  states  where  an  execution  may  be  issued  to  another  county 
without  first  docketing  or  recording  the  judgment  therein,  the  effect 
of  the  execution,  when  so  issued,  as  creating  a  priority  or  "lien," 
may  be  important. 

(1318) 


qIj^  37]  STATUTORY  LIENS.  §   573 

quently  arising,  as  when  the  land  is  sold  or  incumbered  by 
the  execution  defendant  after  the  inception  of  the  lien.^"'^ 
As  a  general  rule,  it  takes  eftect  only  upon  the  actual  title 
of  the  judgment  defendant,  and  is  postponed  to  all  rights 
and  equities  which  may  have  accrued  before  its  inception.^"" 
This  is  not,  however,  the  case  in  that  class  of  states,  before 
referred  to,  in  which  a  judgment  creditor  is  regarded  as 
within  the  protection  of  the  recording  acts,  and  there  the  lien 
of  an  execution  takes  precedence  of  unrecorded  conveyances, 
mortgages,  or  other  incumbrances  existing  at  the  inception 
of  the  lien,  but  of  which  the  creditor  has  no  notice.^^'^ 

§  573.    Liens  for  taxes  and  assessments. 

In  most  of  the  states  it  is  provided  by  statute  that  taxes 
on  a  particular  piece  of  land  shall  constitute  a  lien  thereon. 
In  the  absence  of  such  an  express  provision,  there  is,  it  is 
sometimes  said,  no  such  lien.^^^  But  the  effect  of  a  statute 
authorizing  a  sale  of  the  land  for  taxes  is  undoubtedly  to 
make,  in  effect,  the  taxes  a  lien  on  the  land,  since  any  pur- 
chaser or  incumbrancer  acquires  his  interest  subject  to  the 
possibility  of  such  sale  unless  the  taxes  are  paid.^*^*^     Occa- 

105  French  v.  Allen,  50  Me.  437;  Hall  v.  Crocker,  3  Mete.  (Mass.) 
245;  Doe  d.  Huggins  v.  Ketchum,  20  N.  C.  414;  Castleberry  v.  Weav- 
er, 30  Ga.  534;  Blood  v.  Light,  38  Cal.  649,  99  Am.  Dec.  441;  Young 
V.  Schofield,  132  Mo.  650;  2  Freeman,  Executions,  §  195. 

IOC  O'Rourke  v.  O'Connor,  39  Cal.  442;  Phillips  v.  Roquemore,  96 
Ga.  719;  Holden  v.  Garrett,  23  Kan.  98;  Sappington  v.  Oeschli,  49 
Mo.  244;  Davis  v.  Owenby,  14  Mo.  170,  55  Am.  Dec.  105;  Righter  v. 
Forrester,  1  Bush  (Ky.)   278. 

loT  Hawkins  v.  Files,  51  Ark.  417;  O'Hara  v.  Booth,  29  La.  Ann. 
817;  Davidson  v.  Beard,  9  N.  C.  520;  Stephens  v.  Keating  (Tex.)  17 
S.  W.  37;   Stevenson  v.  Texas  &  P.  Ry.  Co.,  105  U.  S.  703. 

108  Miller  v.  Anderson,  1  S.  D.  539;  Morrow  v.  Dows,  28  N.  J.  Eq. 
463;  City  of  Philadelphia  v.  Greble,  38  Pa.  St.  339;  Cooley,  Taxation, 
447. 

109  See  Dunlap  v.  County  of  Gallatin,  15  111.  7;  Dougherty  v.  Miller, 

(i:319) 


^   573  REAL  PROPERTY.  [Ch.  37 

sionally,  taxes  due  on  personalty  are  made  a  lien  on  the  land 
of  the  owner.  ^^"^ 

Usually  the  lien  for  taxes  on  the  land  is,  by  the  statute, 
imposed  upon  the  land  as  a  whole,  and  not  upon  any  par- 
ticular estates  or  interests  therein,  so  that  all  equities,  inter- 
ests, and  incumbrances,  whether  they  accrued  before  or  after 
the  levy  or  assessment  of  the  tax,  are  subordinate  to  the  lien, 
and  liable  to  be  divested  by  a  sale  for  taxes.-^^^ 

In  the  absence  of  any  statutory  provision  determining  the 
time  of  the  inception  of  the  lien,  it  commences  at  the  time 
when,  "by  an  extension  of  the  tax  upon  the  roll,  a  particular 
sum  has  become  a  charge  upon  a  particular  parcel  of  land."^^^ 
This  is  a  matter  of  importance  only  for  the  purpose  of  de- 
termining which  of  two  private  individuals  shall  pay  the  tax, 
when,  as  is  ordinarily  the  case,  the  tax  is  a  lien  on  the  land 
as  a  whole,  and  not  on  a  particular  interest  therein. 

Assessments  for  local  improvements  also  may  be,  and  usu- 
ally are,  liens  on  the  land  assessed  for  benefits  from  the  im- 

36  Cal.  83;  Hoglen  v.  Cohan,  30  Ohio  St.  436;  Stokes  v.  State,  46  Ga. 
412;  Lyon  v.  Alley,  130  U.  S.  177. 

110  See  New  England  Loan  &  Trust  Co.  v.  Young,  81  Iowa,  732; 
"Union  Trust  Co.  v.  Weber,  96  111.  346;  State  v.  City  of  Newark,  42 
N.  J.  Law,  38;  Albany  Brewing  Co.  v.  Town  of  Meriden,  48  Conn. 
243;  Miller  v.  Anderson,  1  S.  D.  539;  Cooley,  Taxation,  445. 

111  Osterberg  v.  Union  Trust  Co.,  93  U.  S.  424;  Dunlap  v.  County  of 
Gallatin,  15  111.  7;  Keating  v.  Craig,  73  Mo.  507;  Howell  v.  Essex 
County  Road  Board,  32  N.  J.  Eq.  672;  Cooper  v.  Holmes,  71  Md.  20. 
But  the  statute  is  sometimes  construed  as  giving  a  lien  only  on  the 
interest  of  the  person  primarily  bound  to  pay  the  tax.  See  Rhein 
Bldg.  Ass'n  V.  Lea,  100  Pa.  St.  210;  O'Neill  v.  Dringer,  31  N.  J.  Eq. 
507;  Shaw  v.  City  of  Allegheny,  115  Pa.  St.  46;  Morrow  v.  Dows,  28 
N.  J.  Eq.  459.  And  a  tax  on  personalty  is  generally  construed  as 
intended  to  be  a  lien  only  on  the  interest  in  the  land  of  the  person 
owing  the  taxes.  State  v.  City  of  Newark,  42  N.  J.  Law,  38 ;  Miller 
V.  Anderson,  1  S.  D.  539;  Carter  v.  Rodewald,  108  111.  351.  Contra, 
New  England  Loan  &  Trust  Co.  v.  Young,  81  Iowa,  732. 

112  Cooley,  Taxation  (2d  Ed.)  448;  Black,  Tax  Titles,  §  189. 
(1^20) 


Ch_  37]  STATUTORY  LIENS.  .  <<   574 

provemeiit.^^^  The  assessment  may  even  take  precedence  of 
liens  and  incmnbrances  placed  on  the  hmd  before  the  com- 
mencement, or  even  the  ordering  of  the  improvement.^^'* 

United  States  internal  revenue  taxes  are,  by  express  statu- 
tory provision,  made  liens  upon  the  real  estate  of  any  person 
liable  for  such  a  tax.^^^*^ 

§  574.     The  lien  of  decedent's  debts. 

The  liability  of  the  land  of  a  deceased  person  to  be  sold 
in  payment  of  his  debts  may  be,  in  most  jurisdictions,  en- 
forced against  not  only  the  heirs  or  devisees  of  the  land,  but 
against  persons  claiming  by  purchase,  mortgage,  or  other- 
wise, under  such  heirs  and  devisees. ^^^  Consequently,  thi:^ 
liability  of  the  land  to  sale  constitutes,  in  effect,  a  lien  ou 
the  land.  In  England,  however,  and  in  at  least  one  state,  the 
liability  is  enforceable  against  the  land  only  so  long  as  it 

113  Lyon  V.  Alley.  130  U.  S.  177;  Allegheny  City's  Appeal,  41  Pa. 
St.  60;  McKeesport  v.  Fidler,  147  Pa.  St.  538;  Mix  v.  Ross,  57  111. 
121;  Hawthorne  v.  City  of  East  Portland,  13  Or.  271;  Dillon,  Mun. 
Corp.  (4th  Ed.)   §  821. 

114  Dale  V.  McEvers,  2  Cow.  (N.  Y.)  118;  Wabash  Eastern  Ry.  Co. 
V.  East  Lake  Pork  Special  Drainage  Com'rs,  134  111.  384;  Keating 
V.  Craig,  73  Mo.  507;  Chaney  v.  State,  118  Ind.  494;  Provident  Insti- 
tution for  Savings  v.  Jersey  City,  113  U.  S.  506. 

^naRev.  St.  U.  S.  §  3186,  as  amended  by  Act  March  1,  1879,  §  3; 
Id.  §  3207;  United  States  v.  Snyder,  149  U.  S.  210. 

115  Myers  v.  Pierce,  86  Ga.  786;  Davis  v.  Vansands,  45  Conn.  600; 
Nelson  v.  Murfee,  69  Ala.  598;  Den  d.  Warwick  v.  Hunt,  11  N.  J. 
Law,  1;  Hyde  v.  Tanner,  1  Barb.  (N.  Y.)  75;  McCoy  v.  Morrow,  18 
111.  519;  Smith  v.  Gorham,  119  Ind.  436;  Faran  v.  Robinson,  17  Ohio 
St.  242,  93  Am.  Dec.  617. 

The  court  will,  however,  in  particular  cases,  consider  the  fact  that 
the  land  has  passed  into  the  hands  of  a  bona  fide  purchaser,  in  de- 
termining whether  the  application  for  sale  has  been  unreasonably 
delayed.  Ferguson  v.  Scott,  49  Miss.  500;  Rosenthal  v.  Renick,  44 
111.  202;  Creswell  v.  Slack,  68  Iowa,  110.  In  New  York,  the  statute 
requiring  the  sale  to  be  made  in  three  years  applies  expressly  only 
in  favor  of  a  bona  fide  purchaser  of  the  land.  Dodge  v.  Stevens,  105 
N.  Y.  585. 

(1321) 


§   575  REAL  PROPERTY.  ["Ch.  37 

remains  in  the  hands  of  the  heirs  or  devisees,  and  consequent' 
ly  there  it  cannot  be  regarded  as  a  lien.^^^ 

§  575.     Liens  on  crops. 

In  many  states  the  landlord  has  a  lien  for  rent  on  crops 
raised  on  the  demised  premises,^  ^'^  and  in  some  states  has 
likewise  a  lien  thereon  for  any  supplies  furnished  by  him 
to  the  tenant  for  the  purpose  of  raising  such  crops.^^®  Thi* 
lien  usually  takes  priority  of  all  other  liens.^-^^ 

In  some  states,  moreover,  a  person  not  the  landlord,  who 
makes  advances  or  furnishes  supplies  for  the  purpose  of 
enabling  the  owner  of  land  to  raise  a  crop,  may  obtain,  by 
agreement  made  at  the  time  of  making  the  advances  or  fur- 
nishing the  supplies,  a  lien  on  the  crops  to  be  raised.^  ^*^  In 
some  states,  a  lien  on  crops  is  given  by  statute  to  laborers  em- 
ployed in  making  them.^^^ 

116  Kindersley  v.  Jervis,  22  Beav.  1;  British  Mut.  Inv.  Co.  v. 
Smart,  L.  R.  10  Ch.  App.  567;  Smith  v.  Thomas'  Heirs,  14  Lea 
(Tenn.)  324. 

117  See  Nelson  v.  Webb,  54  Ala.  436;  Rotzler  v.  Rotzler,  46  Iowa, 
189;  Lemay  v.  Johnson,  35  Ark.  225;  Love  v.  Law,  57  Miss.  596; 
Miles  V.  James,  36  111.  399;  Jones  v.  Fox,  23  Fla.  454;  Knowles  v. 
Sell,  41  Kan.  171;  State  v.  Reeder,  36  S.  C.  497. 

118  See  Bell  v.  Hurst,  75  Ala.  44;  Stewart  v.  Hollins,  47  Miss.  708; 
Whitmore  v.  Poindexter,  7  Baxt.  (Tenn.)  248;  Jones  v.  Eubanks,  86 
Ga.  616;  Stafford  v.  Pearson,  26  La.  Am.  658. 

119  Saloy  V.  Bloch,  136  U.  S.  338;  Lake  v.  Gaines,  75  Ala.  143; 
Brown  v.  Hamil,  76  Ala.  506;  Smith  v.  Fouche,  55  Ga.  120;  Carroll 
v.  Bancker,  43  La.  Ann.  1078;  Brewer  v.  Chappell,  101  N.  C.  251. 

120  See  Boyett  v.  Potter,  80  Ala.  476;  Bank  of  America  v.  Fortier, 
27  La.  Ann.  243;  Airey  v.  Weinstein,  54  Ark.  443;  Herman  v.  Per- 
kins, 52  Miss.  813;  Warder,  Bushnell  &  Glessner  Co.  v.  Minnesota 
&  Dakota  Elevator  Co.,  44  Minn.  390;  Rawlings  v.  Hunt,  90  N.  C.  270. 

121  Wilson  v.  Taylor,  89  Ala.  368;  Saloy  v.  Dragon,  37  La.  Ann.  71; 
Buck  v.  Paine,  50  Miss.  648;  Emerson  v.  Hedrick,  42  Ark.  263.  Com- 
pare Schilling  v.  Carter,  35  Minn.  287. 

A  statute  giving  a  lien  to  one  who  bestows  labor  on  personal  prop- 
erty has  been  held  not  to  give  an  agricultural  laborer  a  lien  on 
crops.     McDearmid  v.  Foster,  14  Or.  417.     Contra,  Hogue  v.  Sheriff, 
1  Wash.  T.  172. 
(1322) 


Ch.    37]  STATUTORY  LIENS.  §   577 

§  576.     The  statutory  lien  for  improvements. 

The  equitable  right  of  a  bona  fide  occupant  of  land  to  an 
allowance  for  improvements  made  bj  him  is,  as  has  been 
stated,  secured  by  courts  of  equity  by  the  establishment  of  an 
equitable  lien  on  the  land  for  the  amount  thereof.^ -^  The 
statutes  likewise,  in  providing  for  compensation  for  improve- 
ments made  by  an  occupying  claimant,^ -^  sometimes  provide 
expressly  or  by  implication  that  he  shall  have  a  lien  for  the 
amount  thereof.^^"* 

§  577.    Widow's  allowance. 

In  some  states,  the  statute  provides  for  a  pecuniary  allow- 
ance to  the  widow  of  decedent.  Occasionally,  these  statutes 
have  been  construed  as  making  the  land  liable  for  the  pay- 
ment of  such  allowance  in  case  of  a  deficiency  of  personalty, 
and  in  that  case  the  amount  thereof  may  be  regarded  as  a 
lien  on  the  land  until  other  satisfaction  of  the  claim.^^^ 

122  Ante,  §  562. 

123  Ante,  §  241. 

124  Barker  v.  Owen,  93  N.  C.  198;  Whitcomb  v.  Provost,  102  Wis. 
278. 

i2BSee  Detweiler's  Appeal,  44  Pa.  St.  243;  Rector  v.  Reavill,  3  111. 
App.  232;  Blakeman  v.  Blakeman,  64  Minn.  315;  Allen  v.  Allen's 
Adm'r,  18  Ohio  St.  234;  1  Woerner,  Administration.  §  85. 

a323) 


TABLE  OF  CASES. 


[EEFEBENCES   ABE   TO  PAGES.] 


A. 


Aaron  v.  Gunnels,  1028. 

V.  Payne,  437. 
Abbiss   V.   Burney,   277,   293,   348, 

349. 
Abbot  of  Sbirbourne's  Case,  572. 
Abbott's  Petition  245. 
Abbott  V.  Abbott,  508,  887,   1121. 

V.  Butler,  724. 

V.  Cottage  City,  971,  977. 

V.  Essex  Co.,  302. 

V.  Godfrey,  1266. 

V,  Holway,   281. 

V.  Jenkins,   295. 

V.  Kansas  City,  St.  J.  &  C.  B. 
R.  Co.,  664. 

V.  Powell,  1250. 

V.  Rowan,  903. 

V.  Stratten,  1283. 

V.  Wetherby,  384. 
Abby  V.  Goodrich,  917. 
Abell  V.  Brown,  220. 
Abererombie  v.   Baldwin,   389. 

V.  Riddle,  475. 
Abraham  v.  Bubb,  569. 
Abrahams  v.  Tapper,  186. 
Absor  V.  French,  816. 
A.  C.  Conn  Co.  v.  Little  Suamico 

Lumber  Mfg.  Co.,  827. 
Acherley  v.  Vernon,  166. 
Achorn  v.  Jackson,  322. 
Acker  v.  Priest,  230,  877. 
Ackerman  v.  Hartley,  578. 

V.  Hunsicker,  1187. 

V.  Phelp,  825. 
Ackers  v.  Phipps,  324. 
Ackroyd  v.  Smith,  684-686. 

V.  Smithson,  229,  262-264. 
Acruman  v.   Barnes,  1129. 
Acton  V.  Blundell,  656,  667. 

V.  Waddington,   1289. 
Adair  v.  Lott,  489,  501. 


Adam  v.  Briggs  Iron  Co.,  395,  515, 

516. 
Adams  v.  Adams,  935. 

V.  Angell,  1251. 

V.  Beadle,  526. 

V.  Buford,  1120. 

V.  Cohoes,  148,  155. 

V.  Conover,  903,  915. 

V.  Corriston,  1169. 

V.  Couch,  844. 

V.  Dunklee,  870. 

V.  Essex,  1254. 

V.  Field,  945. 

V.  Fletcher,  103. 

V.  Fullam,  1013. 

V.  Gibney,  98. 

V.  Gillespie,  305. 

V.  Goddard,  132. 

V.  Guerard,  205,  311. 

V.  Guy,  1306. 

V.  Harris,  265,  1311. 

V.  Hill,  424.  425. 

V.  Iron  Cliffs  Co.,  975. 

V.  Johnson,  1176,  1284. 

V.  Linden,  180. 

V.  Logan  County,  162. 

V.  McKesson,   535. 

V.  Marshall,  712. 

V.  Medsker,  919. 

V.  Odom,   1261. 

V.  Ore  Knob  Copper  Co.,  179, 
182. 

V.  Parker,  1226. 

V.  Ross,    45,   46,   58. 

V.  Savage,  210,  320. 

V.  Sayre,  1203,  1240. 

V.  Smith,    528. 

V.  Van  Alstyne,  694,  1029. 

V.  Vanderbecle,  1094. 

V.  Warner,  872. 
Adams  Female  Academy  v.  Adams, 

251. 
Adamson  v.  Hartman,  868. 


326 


TABLE  OF  CASES. 


[BEFEBENCES    ARE   TO   PAGES.] 


Addison  v.  Hack,  738. 
Addlington  v.  Cann,  225. 
Aderholt  v.  Henry,  1224. 
Adkins  v.  Lewis,  1207. 

V.  Tomlinson,  913. 
Adsit  V.  Adsit,  454,  455. 
Adye  v.  Smith,  1139. 
Aetna  Ins.  Co.  of  Hartford  v.  Bak- 
er, 1209. 
Aetna  Life  Ins.  Co.  v.  Corn,  1251. 

V.  Hesser,  1307. 
Aetna  Mills  v.  Waltham,  661. 
Agar  V.  Winslow,  127. 
Agate  V.  Lowenbein,  568. 
Agnew  V.   Charlotte,   C.   &  A.   R. 

Co.,  1251. 
Agricultural  Bank  v.  Rice,  866. 
Ahern  v.  McCarthy,  1179. 

V.  Steele,  103. 
Ahrend  v.  Odiorne,  1287,  1288. 
Aiken  v.  Bridgeford,  1271. 

V.  Gale,  1224. 

V.  Smith,    534. 
Aikman  v.  Harsell,  471. 
Airey  v.  Weinstein,  1322. 
Akerly  v.  Vilas,  909. 
Akron  v.  Chamberlain  Co.,  816. 
Alabama  State  Land  Co.  v.  Kyle, 

1007,  1010. 
Albany's  Case,  643. 
Albany  Brewing   Co.  v.   Meriden, 

1320. 
Albany  County  Sav.  Bank  v.  Mc- 
carty, 499. 
Albany  Fire  Ins.  Co.  v.  Bay,  1144. 
Albea  v.  Griffin,  553. 
Alber  v.  Carpenter,  64. 
Albert  v.  Albert,  361. 

V.  State,  102,  104. 

V.  Thomas,  719. 
Albrecht  v.  Long,  1318. 
Albright  v.  Albright,  1146. 
Alcorn  v.  Sadler,  1029. 
Alcutt  V.  Lakin,  527. 
Alden's  Appeal,  747. 
Alden  v.  Gilmore,  1008. 

V.  St.  Peter's  Parish,  251,  362. 
Alderson  v.  Alderson,  496,  502. 

V.  Marshall,  1011. 
Aldin  V.  Clark,  713. 
Aldred's  Case,  651. 
Aldrich  v.  Cooper,  1222,  1250. 

V.  Husband,  545. 
Aldridge  v.  Muirhead,  416. 
Alexander,  In  re,  467. 

V.  Alexander,    176,    634. 


Alexander  v.  Bradley,  474,  475. 

V.  DeKermel,  931,  936. 

V.  Ellison,  397,  1286. 

V.  Greenwood,  1265. 

V.  Hickox,  934. 

V.  Hodges,  179. 

V.  Jackson,  1127. 

V.  Mills,  642. 

V.  Sully,   400. 

V.  Warrance,  492. 
Alexandria  Canal,  etc.,  Co.  v.  Dis- 
trict of  Columbia,  10. 
Alford  V.  Alford,  644. 
Alger  V.  Kennedy,  128. 
Alkir§  V.  Kahle,  388. 
All  V.  Goodson,  1129. 
Allan  V.  Gomme,  724,  733. 
Allegheny  City's  Appeal,  1321. 
Allen  V.  Allen,  602,  826,  903,  1323. 

V.  Ashley  School  Fund,  63,  278, 
302. 

V.  Bartlett,  154,  155. 

V.  Bryan,  796. 

V.  Boston   &    Maine   Ry.    Co., 
590. 

V.  Carpenter,  155. 

V.  Craft,  61,  313,  315. 

V.  Evans,  693,  726. 

V.  Everley,  1199. 

V.  Higgins,  402. 

V.  Hooper,  412. 

V.  Howe,  173. 

V.  Hoyt,  59. 

V.  Jackson,  171. 

V.  Kelly,    156. 

V.  Kellam,  1197. 

V.  Kennedy,  916. 

V.  Kersey,  888,  889. 

V.  Lathrop,  1186. 

V.  Lee,  908. 

V.  Lenoir,  927. 

V.  Leominster  Sav.  Bank,  1239. 

V.  Long,  389. 

V.  Loring,  1312. 

V.  McCoy,   427. 

V.  McRae,   233. 

V.  Mansfield,  998,  1015. 

V.  Mayfield,  288. 

V.  Morris,  1099. 

V.  Poole,  1150,  1261. 

V.  Pray,  458. 

V.  Ranson,  1272. 

V.  Ruddell,  618. 

V.  Savward,  904,  1044. 

V.  South  Boston  R.  Co.,  1088. 

V.  Stevens,  250. 


TABLE  OF  CAbES. 


1327 


[refekexces  are  to  pages.] 


Allen  V.  Sullivan  R.  Co.,  921. 

V.  Taylor,  713. 

V.  Watts,  258. 

V.  Weber,  598,  890,  892. 

V.  Withrow,   868, 

V.  Wooley,  781. 
Allender  v.  Sussan,  111. 
Allendorff  v.  Gaiyengigl,  1175. 
Alley  V.  Carleton,  732. 

V.  Rogers,  1222. 
Alliance  Milling  Co.  v.  Eaton,  1176. 
Ailing  V.   Chatfield,  454,   455. 
Allis  V.  Billings,  1153,  1154. 

V.  Meadow   Springs  Distilling 
Co.,  1304. 

V.  Nininger,  910. 
Allison  V.  Allison,  946. 

V.  McCune,   1212. 

V.  Wilson,  259. 
Allore  V.  Jewell,  879. 
Almand  v.  Scott,  533-535. 
Almy  V.  Church,  817,  1006. 

V.  Hunt,  904. 

V.  Jones,   363. 
Alsberry  v.  Hawkins,  1158. 
Alsop  V.  Moseley,  1308. 
Alsup  V.  Banks,  856. 
Alt  V.  Banholzer,  505,  1221. 

V.  Graff,  1148. 
Altemas  v.  Campbell,  1000. 
Alterauge  v.  Christiansen,  1100. 
Altham's  Case,  871. 
Altham  v.  Anglesey,  209. 
Althen  v.  Tarbox,  1301. 
Althof  V.  Conheim,  1385. 
Alton  V.  Illinois  Transp.  Co.,  979. 
Alverson  v.  Randall,  2«3,  284,  307. 
Alwood  V.  Ruckman,  533. 
Ambler  v.  Woodbridge,  179. 
Ambre  v.  Weishaar,   950. 
Ambrose  v.  Woodmansee,  1301. 
Amcotts  V.  Catherich,  424,  432. 
American  Board  of  Foreign   Mis- 
sions V.  Nelson,  962. 
American  Co.  v.  Bradford,  1028. 
American  Ins.  Co.  v.  Gibson,  1306. 
American    Loan    &    Trust    Co.    v. 

Billings,  1283. 
American   Sav.   &   Loan  Ass'n  v. 

Burghardt,  505. 
Ames  V.  Ames,  388. 

V.  Cannon  River  Mfg.  Co.,  660. 

V.  Hilton.  897. 

V.  Norman,  381,   383. 

V.  Richardson,   1208,   1209. 

V.  Shaw,  729. 


Amey  v.  Cockey,  1150. 
Amick  V.  Bruber,  143. 
Amidon  v.  Harris,  686. 
Ammerman  v.  Deane,  769. 
Ammidown  v.  Ball,  883,  897. 

V.  Granite  Bank,  897. 
Amory  v.  Fellowes,  947. 

V.  Kannoffsky,  857. 

v.  Meredith,  628,  631. 
Amos  v.  Amos,  288,  290,  292. 

v.  Cosby,  911,  914. 

v.  Parker,  583. 
Amphlett  v.  Hibbard,  505. 
Amsbry  v.  Hinds,  819. 
Ancaster  v.  Mayer,   1245. 
Anderson's    Appeal,    456. 
Anderson  v.   Bocle,   1007. 

V.  Briscoe,  73. 

V.  Brown,  336. 

V.  Bumgartner,  1228. 

V.  Gary,  1136,  1137. 

V.  Cincinnati     Southern     Ry. 
Co.,  656,  657. 

V.  Coburn,  509. 

V.  Dugas,    1078. 

V.  Etter,  1115. 

V.  Hayes,    100. 

V.  Henderson,    665. 

V.  Jackson,  302. 

V.  Knox,   903. 

V.  Logan,  46,  48. 

V.  Miller,   568. 

V.  Nagle,  1310. 

V.  NefC,  1243,  1311. 

V.  Northrop,  1012. 

V.  Prindle,  47,  145,  146,  148. 

V.  Robbins,    783. 

V.  Roberts,  1112,  1113. 

V.  Sharp,  1228. 

V.  Smith,  124. 

V.  Taylor,  1318. 

V.  Tydings.  1308. 

V.  Davis,  1012,  1240. 
Andis  V.  Davis.   1298. 
Andrae  v.  Haseltine,  692,  726. 
Andreas  v.  Hubbard,  1242,  1250. 
Andrews   v.   Andrews,    461-463. 

V.  Brumfield,   628. 

V.  Day  Button   Co.,   548. 

V.  Jones.    570. 

V.  Lowthrop,   314. 

V.  Roye,  332. 

V.  Senter,    178,    181. 

V.  Stelle,  1266. 

V.  Todd,  873. 
Andrus  v.  Coleman.  1291. 


1328 


TABLE  OF  CASES. 


[eefebences  ake  to  pages.] 


Andrus  v.  Vreeland,  1252. 
Angell  V.  Rosenbury,  47. 
Angier  v.  Agnew,  1211,  1213. 
Anglesea   v.   Church   Wardens   of 

Rugeley,  168. 
Angus  V.  Dalton,  690,  1020,  1021, 

1024,   1032. 
Anketel  v.  Converse,  1088,  1287. 
Annable  v.  Patch,   60. 
Annapolis  &  E.   R.   Co.   v.   Gantt, 

1194. 
Annely  v.  De  Saussure,  393,  397. 
Anonymous  (Cro.  Eliz.  40),  207. 
(Cro.   Jac.   151),    468. 
(Mosely,  237),  579. 
(1  Vern.  45),  1202. 
(Y.  B.  21  Hen.  VII.  26,  pi.  4), 
547. 
V.  Cooper,  802. 
Ansley  v.  Pasahro,  1287. 
Anson  v.  Anson,  1265. 
Anthony  v.  Anthony,  1244,  1245. 
V.  Gifford,  593. 
V.  Lapham,    656. 
V.  Providence,   894,   896. 
Anthracite  Sav.  Bank  v.  Lees,  292. 
Antomarchi  v.  Russell,  693,  733. 
Apperson  v.  Farrell,  1302. 

V.  Moore,  1173. 
Apple  V.  Apple,  422. 
Appleton  V.  Rowley,  492. 
Appley   V.    Trustees   of   Montauk, 

822. 
Appling  V.  Orem,  535. 
Arbuckle  v.  Ward,  722,  1027. 
Archer's  Case,  292,  295,  313,  314. 
Archer  v.  Helm,  583. 

V.  Salinas  City,  977. 
Arden  v.   Pullen,   102. 
V.  Thompson,  889. 
Ards  V.  Watkin,  785. 
Arender  v.  Call,  611. 
Argyle  v.   Dwinel,   1310. 
Arkansas  River  Packet  Co.  v.  Sor- 
rels, 979. 
Arkweight  v.  Gell,  690. 
Arlin  v.  Brown,  1287-1289. 
Arlington  Bank  v.  Paulsen,  618. 
Arlington  Mill  &  Elevator  Co.  v. 

Gates,  1171. 
Arlington  State  Bank  v.  Paulsen, 

628. 
Armistead  v.  Hartt,  246,  336. 
Armor  v.  Pye,  739. 
Armstrong's    Estate,    In    re,    506, 
507. 


Armstrong  v.   Armstrong,  945. 

V.  Cummings,    775. 

V.  Maybee,   101. 

V.  Risteau,  998,  999. 

V.  Ross,   414. 

V.  Snowden,    642. 

V.  Stovall,  866. 

V.  Wilson,  501,  565,  578. 

V.  Wilsey,  209. 
Arenson  v.  Spawn,  93. 
Arnits  v.  Garnett,  803. 
Arnold  v.  Brown,  326. 

V.  Budlong,    1299. 

V.  Cornman,  1028. 

V.  Foot,  656. 

V.  Green,  1247,  1249. 

V.  Grimes,  843. 

V.  Holbrook,  816. 

V.  Hudson  River  R.  Co.,  1070. 

V.  Jack,  376. 

V.  Jones,  1126,  1127. 

V.  Lincoln,  49. 

V.  Mundy,  825. 

V.  Patrick,  934. 

V.  Richmond       Iron       Works,. 
1154. 

V.  Stevens,    736,    920. 

V.  Waltz,   1122,    1123. 
Arnsby  v.  Woodward,  120. 
Arques  v.  Wasson,  1174. 
Arrington  v.  Arrington,  1087, 1098. 
Arthur  v.  Anderson,  920. 

v.  Cole,  171. 

V.  Scott,   352. 
Asay  V.  Hoover,  617,  640. 
Ashby  V.  Ashby,  606. 
Ashcroft   V.   Eastern   R.   Co.,    705, 

873. 
Asher  Lumber  Co.  v.  Cornett,  528. 
Ashford  v.  Prewitt,  934. 
Ashley  v.  Ashley,  301,  302. 

V.  Warner,   143.     . 
Ashton  V.  Atlantic  Bank,  220. 

V.  Ingle,  1125. 

V.  Slater,  1305. 
Ashurst  V.  Given,  225'. 

V.  Peck,  266. 
Ashwell  V.  Ayres,  922,  923. 
Aspden   v.   Seddon,   690. 
Astbury,  Ex   parte,   540. 
Astley  V.  Micklethwait,  293. 
Astor  V.  Hoyt,  1197. 
V.  Turner,  1201. 
Astry  V.  Ballard,  561,  562. 
Astugueville  v.  Loustaunau,  1132. 


TABLE  OF  CASES. 


1329 


[references  are  to  pages.] 


Atchison  v.  Peterson,  662. 
Atchison,    T.    &    S.    F.    R,    Co.    v. 

Morgan,   541. 
Atlvin  V.   Merrell,  475. 
Atkins  V.  Bordman,  725,  729. 

V.  Chilson,  187. 

V.  Huston,  582. 

V.  Paul,  1176. 

V.  Sawyer,  1195. 

V.  Yeomans,  483,  511. 
Atkinson  v.  Atlvinson,  505,  511. 

V.  Baker,  78. 

V.  Bell,  972. 

V.  Brady,  406. 

V.  Bowling,  612,  643,  648. 

V.  Hewett,  1212. 

V.  Walton,  1254. 
Atkison  v.  Henry,  382. 
Atlanta  v.  Holliday,  809. 
Atlanta  Mills  v.  Mason,  734. 
Atlantic  Dock  Co.  v.  Leavitt,  751, 

1217. 
Attersol  v.  Stevens,  572. 
Attoe  V.  Hemmings,  272. 
Attorney   General  v.  Abbott,  978. 

V.  Boyer,  363. 

V.  Chambers,  592. 

V.  Doughty,  651. 

V.  Federal  St.  Meeting  House, 
698. 

V.  Fullerton,  582. 

V.  Gill,  362. 

V.  Lauderfield,    226. 

V.  Lloyd,  962. 

V.  Marlborough,  559. 

V.  Merrimack  Mfg.  Co.,  162. 

V.  Metropolitan    R.    Co.,    812, 
815. 

V.  Purmort,  1172. 

V.  Tarr,  824,  978. 

V.  Williams,   729. 

V.  Woods,  591. 
Attwater  v.  Attwater.  1136. 
Atwater  v.  Bodfish,  723,  734. 

V.  Perkins,    613. 
Atwood  V.  Atwood,  422,  480. 

V.  Fisk,  1191. 

V.  Norton,  86. 

V.  Vincent,  1287. 
Aubin  V.  Daly,  13. 
Auer  V.  Penn,  856. 
Augusta  V.  Perkins,  979. 

V.  Walton.  226. 
Augusta  Mfg.  Co.  v.  Vertrees,  1119, 
1120. 

Real  Prop.— 84. 


Augustus  V.  Seabolt,  305. 
Aulick  V.  Wallace,  291. 
Aull  V.  Lee,  1184. 
Aurora  v.  Fox,  809. 
Aurora   Agricultural    &    Horticul- 
tural Soc.  V.  Paddock,  1156. 
Austell  V.  Swann,  481,  484. 
Austen  v.  Taylor,  239. 
Austerberry  v.  Oldham,  752,  764. 
Austin  V.  Austin,   472. 

V.  Brown,  417. 

V.  Cambridgeport  Parish,  181, 
183. 

V.  Charlestown  Female  Semi- 
nary, 1150. 

V.  Dolbee,  882. 

V.  Fendall,  929. 

V.  Hall,  401. 

V.  Hudson  River  R.   Co.,  572, 
671. 

V.  Huntsville  Coal  &  Min.  Co., 
520. 

V.  Oakes,  616,  633. 

V.  Rutland    R.    Co.,    596,    598, 
1002. 

V.  Sawyer,   527. 

V.  Sprague  Mfg.  Co.,  1274. 

V.  Thompson,  140. 

V.  Underwood,  1129. 

V.  Wilson,  1010. 
Auwerter  v.  Mathiot,  1309. 
Auworth  V.  Johnson,  570. 
Aveline  v.  Whisson,  918. 
Avelyn  v.   Ward,   339. 
Avent  V.  Arrington,  1016. 
Averill  v.  Gutherip  1243. 
Avern  v.  Lloyd,   346. 
Avery  v.  Clark,  1287,  1291,  1292. 

V.  Dougherty,   96,   910. 

V.  Dufrees,   242. 

V.  Everett.    1161. 

V.  Maxwell,  588. 

V.  New  York  Cent.  &  H.  R.  R. 
Co.,  731. 

V.  Pixley,  958. 
Axline  v.  Shaw,  892. 
Axtel  V.  Chase,  910. 
Aycinena  v.  Peries,  218. 
Aycock  V.  Kimbrough,  404. 
Aydlett  v.  Pendleton,  406. 
Ayer   v.    Aver,    212. 

V.  Philadelphia       &       Boston 
Brick  Co.,  1080. 

V.  Ritter,    211. 
Ayers  v.  Reidel,  1014. 
Ayling  v.  Kramer,  185. 


1330 


TABLE  OP  CASES. 


[EEFEBENCES  ABE  TO  PAGES.] 


Ayres  v.  Dixon,  1248. 

V.  Pennsylvania  R.  Co.,  973. 

V.  Probasco,  868. 
Ayton  V.  Ayton,  291. 


B. 


Babb  V.  Perley,  410. 
Babbitt  v.  Day,  441. 
Babcock  v.   Disk,   1184. 

V.  Scoville,  107,  781. 

V.  Wyman,  1181. 
Bachelder  v.  Dean,  92. 
Bachman  v.  Chrisman,  411. 
Backenstoss   v.    Stabler,  526,   527, 

531. 
Backhouse  v.  Bonomi,  669,  678. 
Backus  V.  McCoy,  900,  912. 
Bacon's    Appeal,    248. 
Bacon    v.    Bowdoin,    89,    92,    883, 
1194. 

V.  Brown,    1183. 

V.  Cottrell,  1207. 

V.  Mclntire,  1256. 

V.  O'Keefe,  1264. 

V.  Smith,  577. 

V.  Van  Schoonhoven,  1232. 
Badger  v.  Batavia  Paper  Mfg.  Co., 
545. 

V.  Boardman,  767. 

V.  Holmes,   392. 
Badger  Lumber  Co.  v.  Marion  Wa- 
ter Supply,  etc.,  Co.,  898. 
Baggett  V.  Meux,  1138. 
Bagley  v.  Columbus  Southern  Ry. 
Co.,    523. 

V.  Freeman,  110. 

V.  Kennedy,  1012. 

V.  Ward,   1318. 
Bagwell  V.  Jamison,  801. 
Bagot  V.  Bagot,  563. 
Bagott  V.  Orr,  601,  826. 
Baile  v.  Coleman,  312. 
Bailey,  Petitioner,  612,  620. 
Bailey  v.  Bailey,  1314. 

V.  Brown,  622. 

V.  Carleton,  1009,   1017. 

V.  Galpin.  1082. 

V.  Hemenway,   232. 

V.  Hoppin,  306. 

V.  Kilburn,  121. 

V.  Metcalfe,   1238. 

V.  Mizell,    1314. 

V.  Myrick,  1222,  1266. 

V.  Smock,  1293. 

V.  Stephens,  742. 


Bailey  v.  Warner,  1316. 

V.  Wells,   109. 

V.  White,  881. 

V.  Winn,  1227. 
Bailie  v.  McWhorter,  1141. 
Baily  v.  Smith,  1232. 
Bainbridge   v.    Sherlock,   595,   598, 

828. 
Bainway  v.  Cobb,  551. 
Baird  v.  Baird,  1185. 

V.  Boucher,  638. 

V.  Jackson,  396,  1286. 
Bakeman  v.  Talbot,  729. 
Baker's  Appeal,  1280. 
Baker  v.  Adams,  773. 

V.  Atchison,  444. 

V.  Baker,  487,  933. 

V.  Bishop  Hill  Colony,  1171. 

V.  Chandler,  1308. 

V.  Collins,  1191. 

V.  Copenbarger,   255,   259. 

V.  Frick,  719,  729. 
■   V.  Gavitt,  1237. 

V.  Hart,  745. 

V.  Heiskell,  492. 

V.  Johnston,  971,  976. 

V.  Jones,   179. 

V.  Jordan,   527,   529. 

V.  Kennett,   1152. 

V.  Mott,  717. 

V.  Nail,  492. 

V.  Oakwood,  998. 

V.  Pyatt,  879. 

V.  Rice,  708,  709,  713. 

V.  Sanderson,  674. 

V.  Shepard,    809. 

V.  Stewart,   382. 

V.  Thompson,  1310. 

V.  Updike,  1291. 

V.  Viuing,  229,  230,  232. 

V.  Waldron,    1301. 

V.  Whiting,  852. 

V.  Wind,  1177,  1178. 

V.  Woodward,    1091. 
Bakewell  v.  Ogden,  631,  641. 
Baldwin  v.  Bean,  51. 

V.  Brown,  585. 

V.  Buffalo,    976. 

V.  Hatchett,  1196. 

V.  Rogers,  335. 

V.  Sager,   1094. 

V.  Spriggs,  964. 

V.  Timmins,  904. 

V.  Van  Vorst,  1254. 
Ball  V.  Ball.  496. 

V.  Chadwick,  123. 


TABLE  OF  CASES. 


1331 


[reFEBENOES  ABE   TO   PAGES.] 


Ball  V.  Dunsterville,  923. 

V.  First  Nat.  Bank  of  Coving- 
ton, 779. 

V.  Herbert,  828. 

V.  Nye,  668. 

V.  Setzer,  1250. 
Ballard  v.  Butler,  725. 

V.  Carter,  1265. 

V.  Child,  915. 

V.  Demmon,  1025,  1027. 

V.  Dyson,  720,  723. 

V.  Struckman,  688. 

V.  Tomlinson,  668. 
Ballenbacker  v.  Fritts,  152. 
Ballentine  v.  Wood,  290. 
Ballou  V.  Ballon,  1073. 

V.  Hale,  403. 
Balsz  V.  Lebenow,  844. 
Baltimore  v.  Appold,  657,  661. 

V.  Frick,   975. 

V.  Warren  Mfg.   Co.,  659. 

V.  Williams,  1114,  1115,  1116. 
Baltimore  Breweries  Co.  v.  Ran- 

stead,  666. 
Baltimore   &   L.   Turnpike   Co.   v. 

Cassele,  820. 
Baltimore   &   O.  R.  Co.  v.  Gould, 
980. 

V.  Trumble,  1287. 

V.  West,  151. 
Baltimore    &    P.    R.    Co.    v.    First 

Baptist  Church,  653. 
Bamford  v.  Turnley,  653. 
Bamforth  v.  Bamforth,  287. 
Bancroft  v.   Otis,  953. 
Band  v.  Boucher,  629. 
Banfiekl  v.  Whipple,  1110. 
Banghart  v.  Flummerfelt,  701. 
Bangor  v.  Warren,  183. 
Bangor     House     Proprietary     v. 

Brown,  896.  897. 
Bangs  V.  Lowber,  94. 

V.  Parker,  734. 

V.  Potter,  732. 

V.  Smith,    628. 
Bank  of  America  v.  Fortier,  1322. 
Bank  of  Augusta  v.  Earle,  9. 
Bank  of  Commerce  v.  Owens,  447. 
Bank  of  Greensboro  v.  Chambers, 

413. 
Bank  of  Indiana  v.  Anderson,  1227, 

1232. 
Bank   of   Lansingburgh   v.   Crary, 

529. 
Bank  of  Montgomery  County's  Ap- 
peal, 1187. 


Bank  of  Muskingum  v.  Carpenter, 

1284. 
Bank   of  New   Bury   v.   Eastmaa, 

935. 
Bank    of    Pennsylvania    v.    Wise, 

783. 
Bank  of  Rochester  v.  Gray,  921. 
Bank  of  State  v.  Forney,  1137. 
Bank  of  United  States  v.  Benning, 
242. 

V.  Carrington,  224. 

V.  Housman,    863. 
Bank  of  Utica  v.  Mersereau,  122. 
Bank    of    Versailles    v.    Guthrey, 

1122,   1123,  1132. 
Banks  v.  Aminon,  1082. 

V.  Banks,  960. 

V.  Whitehead,  911. 
Banning  v.  Banning,  926. 

V.  Bradford,  1262,  1267. 
Bannon  v.  Angler,  736. 

V.  Brandon,  1011. 
Banton  v.  Shorey,  531. 
Barbe  v.  Hyatt,   508. 
Barber,   In  re,   329. 
Barber  v.  Babel,  506. 

V.  Cary,    641. 

V.  Harris,    380. 

V.  Lefavour,    793. 

V.  Pittsburgh,  Ft.  W.  &  C.  Ry. 
Co.,    63,    357. 

V.  Robinson,  1015. 

V.  Root,   411,    412. 
Barclay  v.  HendricK,  375. 

V.  Howell,   810,   980. 

V.  Picker,  135. 
Barclay    Railroad    &    Coal    Co.    v. 

Ingham,   595.   826. 
Barco  v.  Fennell,  511. 
Bard  v.  Murphy,  670. 

v.  Poole,  1263. 
Barfield  v.  Price,  878. 
Barger  v.  Hobbs.  1016. 
Barhydt  v.  Burgess,  108. 
Baring  v.  Abingdon.  703. 
Barker  v.  Blake.  480. 

V.  Clark,    1023. 

V.  Cobb,   186. 

V.  Damer,  798. 

V.  Flood,  1252. 

V.  Greenwood,  212. 

V.  Jenkins,  507. 

V.  Keat,  208. 

V.  Owen,  1323. 

V.  Pearce.  293. 
Barklev  v.   Wilcox,   655,   664,   665. 


1332 


TABLE  OF  CASES. 


[refebences  aee  to  pages.] 


Barksdale  v.  Garrett,  482. 

V.  Hopkins,  961. 
Barkshire  v.  Grubb,  703. 
Barlow  v.  Salter,  357,  358. 

V.  Wainwright,  87,  147,  148. 
Barnard  v.  Adams,  251. 

V.  Backhaus,  1191. 

V.  Bailey,  1136. 

V.  Campau,   1083. 

V.  Edwards,  482. 

V.  Godscall,  108. 

V.  Jennison,   1203. 

V.  Pope,  389. 

V.  Whipple,  698. 
Barnes  v.  Barnes,  930. 

V.  Bartlett,  882. 

V.  Crow,  969,  970. 

V.  Dow,    1141. 

V.  Dowling,  571. 

V.  Gay,  434. 

V.  Haynes,  1029. 

V.  Light,   998. 

V.  Lloyd,   686. 

V.  Loach,    713. 

V.  Lynch,  394,  395. 

V.  Northern  Trust  Co.,  112. 

V.  Provoost,  290,  291. 

V.  Raper,  422. 

V.  Wood,  265. 
Barnett's  Appeal,  211. 
Barnett  v.  Barnett,  316,  870. 

V.  Gaines,  906. 

V.  Johnson,  814. 

V.  Nelson,  1202,  1283. 

V.  Vincent,   232. 
Barnewall  v.  Murrell,  947. 
Barney  v.  Keokuk,   591,   594,  813, 
826. 

V.  Leeds,  1123. 

V.  McCarty,  1082. 

V.  Myers,  1223. 

V.  Saunders,  241. 
Barney's  Will,  In  re,  953. 
Barnhart  v.  Campbell,  395. 
Barnitz  v.  Casey,  307,  342. 
Barns  v.  Wilson,  96. 
Barnum  v.  Barnum,  354. 

V.  Phenix,  1231. 

V.  Galloway,  488,  489. 

V.  Gratz.   390. 
Barr  v.  Lamaster,  702. 

V.  O'Donnell,   235. 
Barraque  v.  Manuel,  1263. 
Barre  v.  Fleming,  595,  907. 
Barren  v.  Sabine,  1181. 


Barrel!  v.  Title  Guarantee  &  Trust 

Co.,  1000. 
Barrett  v.  Blackmar,   1Z66. 

V.  Boddie,   129,   136. 

V.  Dolan,  694,  696. 

V.  Durham,  511. 

V.  Failing,  464,  497. 

V.  French,  321. 

V.  Hinckley,  219,  1168,  1194, 
1196,  1197,  1199,  1226, 
1227,  1229. 

V.  Kelly,  1159. 

V.  Mount  Greenwood  Ceme- 
tery Ass'n,  658. 

V.  Nealon,   1112. 

V.  Sargeant,  1316. 

V.  Stradl,  75,  553. 
Barrick  v.  Horner,  1270. 
Barrie  v.  Smith,  172,  176. 
Barrington,  In  re,  579. 
Barrington's  Case,  529. 
Barron  v.   Babcock,  392. 

V.  Barron,   412,   413. 

V.  Richard,   767. 

V.  Thompson,    1311. 
Barrows  v.  Syracuse,  812-814. 
Barry  v.  Adams,  1118,  1119. 

V.  Butlin,  953. 

V.  Edlavitch,  692,  722,  1032. 

V.  Gild,   909,   1276. 

V.  Merchants'  Exchange  Co., 
1156. 

V.  Shelby,   860. 

V.  Western   Assur.    Co.,   1122, 
1124. 
Barsdale  v.  Hairston,  681. 
Barth  v.  Deuel,  878. 
Barthele  v.  Tyerson,  1206. 
Bartholomew  v.  West,  1127. 
Bartlet  v.  Harlow,  395. 

V.  King,  250. 
Bartlett  v.  Bangor,  717,  975. 

V.  Bartlett,  228. 

V.  Cottle,   1277. 

V.  Drake,  919. 

V.  Gouge,  437. 

V.  Hitchcock,  1205. 

V.  O'Connor,  667. 

V.  Secor,  1013. 

V.  Sutherland,  623. 

V.  Watson,  265. 

V.  Young,  584. 
Bartley  v.  Spaulding,  728. 
Barton  v.  Briscoe,  1141,  1142. 

V.  Drake,  1131,  1132. 

V.  Morris,  882. 


TABLE  OF  CASES. 


1333 


[BEFEBENCES   ABE   TO   PAGES.] 


Barwick's  Case,  279,  338. 
Barzizas  v.  Hopkins,  1158. 
Baskett  v.  Sellars,  871. 
Bass  V.   Metropolitan  West  Side 

Elevated  R.  Co.,  567. 
Bassett  v.  Bassett,  880. 

V.  Bradley,  1220. 

V.  McKenna,  1112. 

V.  Maynard,  685. 

V.  Monte  Cristo  Gold  &  Silver 
Min.  Co.,  1255. 

V.  Salisbury  Mfg.  Co.,  667. 
Basshor  v.  Stewart,  939. 
Batavia     Mfg.     Co.     v.     Newton 

Wagon  Co.,  758. 
Batchelder  v.  Batchelder,  142. 

v.  Hutchinson,  1302. 

V.  Keniston,  1037,  1038. 

V.  Sturgis,  906. 
Batchelor  v.  Brereton,  866. 
Bateman  v.  Backus,  1317. 

V.  Burr,  1274. 

V.  Hotchkin,  364,  571. 
Baten's  Case,  515. 
Bates  V.  Austin,  134. 

V.  Bates,  1139. 

V.  Boston  &  N.  Y.  C.  R.  Co., 
922. 

V.  Gillett,   308. 

V.  Hamilton,  392. 

V.  Ruddick,  1223, 

V.  Shraeder,  501,  576. 
Bath  V.  Boyd,  821. 
Batte  V.  McCaa,  1145. 
Batterman  v.   Albright,   526. 
Battin  v.  Woods,  400. 
Battle  V.  Bering,  1307. 
Batty  V.  Snook,  1170. 
Baucum  v.  George,  1009. 
Bauer  v.  Gottmanhausen,  888. 
Baugher  v.  Merryman,  1215,  1216. 

V.  Wilkins,  96,  97. 
Baum  V.  Grigsby,  265,  1290,  1291. 

V.  Raley,  1269. 
Bauman  v.  Boeckeler,  974. 
Baumier  v.  Antiau,  855. 
Bavington  v.  Clarke,  1310. 
Baxter  v.  Mclntire,   1184. 

V.  Smith,   1145. 

V.  Tanner,  878. 

V.  Taylor,   731. 
Bay  V.  Posner,  622. 

V.  Williams,  1219,  1221. 
Bayard  v.  Hargroove,  980. 

V.  McLane.  1119. 
Baygents  v.   Beard,  1146. 


Bayler  v.  Com.,  1172. 
Bayles  v.  Baxter,  230. 

V.  Young,  1U96. 
Bayless  v.  Prescott,  336. 
Bayley  v.  Bailey,  961,  1170. 

V.  Bradley,  799. 

V.  Great  Western  Ry.  Co.,  703. 

V.  Greenleaf,  1288,  1289,  1291. 
Baynes  v.  Chastain,  696. 

V.  Lloyd,  96,  98. 
Baynton  v.  Morgan,  787. 
Bazille  v.  Murray,  1007. 
Beach  v.  Beach,  219. 

V.  Grain,  101. 

V.  Fay,  823. 

V.  Miller,   906,   908. 
Beacroft  v.  Strawn,  59. 
Beal   V.    Boston   Car    Spring    Co., 
113,  133,   780. 

V.  Harrington,   1289. 

V.  Stehley,  260. 

V.  Stevens,  1239. 

V.  Warren,     417,     876,     1114, 
1116. 

V.  Harwood,  1197. 

V.  Knowles,   411. 
Bealey  v.  Blakes'  Adm'r,  779. 
Beall  V.  Beck,  804. 
Beals  V.  Case,  763. 

V.  Illinois,  M.  &  T.  R.  Co.,  220. 
Bean  v.  Boothby,  1252. 

V.  Coleman,   729. 

V.  French,  701. 

V.  Mayo,   904. 
Bear  v.  Snyder,  480. 
Beard  v.  Knox,  445. 

v.  Murphy,   664. 

v.  Rowan,  323. 
Beardman  v.  Wilson,  114. 
Beardslee  v.   French,   818. 
Beardsley  v.   Crane,  586. 

V.  Hotchkiss,  618. 

V.  Knight,  404,  922. 
Bearss  v.  Ford,  1177. 
Beatie  v.  Butler,  1269. 
Beatty  v.  Clarke,  635. 

V.  Kurtz,  972. 

v.  Mason,  1008. 

V.  Sweeney,  1048. 
Beaty  v.  Bordwell,  397. 
Beaudry  v.  Doyle,  888. 
Beaupland   v.   McKeen,   913,   1048. 
Beavan  v.  Went,  1159. 
Beavans  v.  Biscoe,  523. 
Beavers  v.  McKinley,  877. 

V.  Smith,  473-475,  481. 


1334 


TABLE  OF  CASES. 


LBEFEEENCES  ABE  TO  PAGES.] 


Bebb  V.  Crowe,  1125. 
Becar  v.  Flues,  90,  92. 
Beck's  Appeal,  616. 
Beck  V.  Birdsall,  1286. 

V.  Louisville,   N.    O.    &   T.   R. 

Co.,  679. 
V.  Ulrich,  1095. 
Becker  v.  Walworth,  111. 
Beckford  v.  Parnecott,  969,  970. 
Beckman  v.  Kreamer,  601. 
Beckwith's  Case,  209. 
Bedford  v.  Terhune,  114. 

V.  Trustees   of   British   Muse- 
um, 769. 

V.  Willard,  1006. 
Bedon  v.  Bedon,  273. 
Beebe  v.  Lyle,  434. 

V.  McKenzie,  322. 
Beecher   v.   Wilson,   231. 
Beekman  v.  Bonsor,  245. 

V.  Frost,  1083. 

V.  Kreamer,  825. 

V.  Lansing,  804. 
Beeks  v.  Rye,  367. 
Beers  v.  Narramore,  359. 

V.  St.  John,  553. 
Beeson  v.  Burton,  138. 
Begein  v.  Brehm,  1247. 
Behrens  v.  McKenzie,  1155. 
Belcher  v.  Belcher,  615. 

V.  Burnett.  307. 
Belden  v.  Seymour,  228. 

V.  Younger,  505. 
Belknap  v.  Gleason,  1256. 

V.  Trimble,  690. 
Bell  V.  Adams,  998. 

V.  American      Protective 
League,  110,  119. 

V.  Bell,  257,  510. 

V.  Farmers'  Bank,  936,  1176. 

V.  Fothergill,  958. 

V.  Gough,  592,  597. 

V.  Hurst,  1322. 

V.  Kennedy,  868. 

V.  McClintock,  660. 

V.  McDuffie,  870. 

V.  Midland  Ry.  Co.,  731. 

V.  Nealy,  465. 

V.  New  York,  436,  1242. 

V.  Ohio  &  P.  R.  Co.,  747,  748, 
822. 

V.  Pelt,  1282,  1292. 

V.  Scammon,  320. 

V.  Twilight,  629,  1090,  1095. 

V.  Watkins,  1279. 


Bell    V.    Western    Marine    &    Fire 

Ins.  Co.,  1209. 
Bell  County  v.  Alexander,  166. 
Bellamy  v.  Sabine,  1098. 
Bellasis  v.  Burbrick,  91. 
Bellefontaine  Improvement  Co.  v. 

Niedringhaus,   1036. 
Bellis  V.  Bellis,  1008. 
Bellows  V.  Jewell,  1016. 

V.  McGinnis,  565. 
Bells  V.  Gillespie,  302. 
Belmont  v.  Coman,  1218. 

V.  O'Brien,  1255. 
Beloit  Second  Nat.  Bank  v.  O.  E. 

Merrill  Co.,  552. 
Bemis  v.  Call,  1252. 

V.  Wilder,  107. 
Bender  v.  Fromberger,  912. 

V.  George,  121. 

V.  Luckenbach,   266,  267,  965. 
Bendey  v.  Townsend,  1263. 
Benedict  v.  Everard,  107. 

V.  Torrent,  394,  580. 
Benfey  v.  Congdon,  156. 
Benham  v.  Potter.  819,  980. 

V.  Rowe,  1206. 
Benne  v.  Miller,  1036. 
Benner  v.  Evans,  472. 
Benneson  v.  Aiken,  1045. 
Bennet  v.  Davis,  414. 
Bennett's  Estate,  1282. 
Bennett  v.  Bates,  1217,  1218.  1221. 

V.  Bittle,  793. 

V.  Child,  381. 

V.  Conant,  1258. 

V.  Davis,  493,  1045,  1081. 

V.  Fuller,  386. 

V.  Gaddis,  966. 

V.  Garlock,  47. 

V.  Harms,  1159. 

V.  Hibbert,  1158. 

V.  Jenkins,  913. 

V.  Morris,  283,  297. 

V.  Packer,  453. 

V.  Turner,  525. 
Bennock  v.  Whipple,  153,  1177. 
Bensley  v.  Mountain  Lake  Water 

Co.,  1100. 
Benson  v.  Markoe,  879. 

V.  Morrow.  594,  1036. 
Bent-Otero     Improvement    Co.    v. 

Whitehead,  633. 
Bentham  v.  Smith,  636. 
Bentley  v.  Adams,  1300. 

V.  Root,  737. 
Benton  v.  Johncox,  6r  J. 


TABLE  OP  CASES. 


1335 


[references  ABE  TO  PAGES.  J 


Bergen  v.  Bennett,  613,  1269. 

V.  State,  1308. 
Berger    v.    Minneapolis    Gaslight 

Co.,  666. 
Berghoefer  v.  Frazier,  583. 
Bergman  v.  Roberts,  123. 
Berkeley  v.  Archbishop  of  York, 

853. 
Berkey  v.  Judd,  938. 
Berkman  v.  Frost,  1240. 
Berlack  v.  Halle,  1266. 
Bernier  v.  Bernier,  845. 
Bernstein  v.  Humes,  1118. 
Berridge  v.  Glassey,  870. 

V.  Ward,  893. 
Berrington  v.  Casey,  91,  96. 
Berry  v.  Anderson,  930. 

V.  Billings,  871. 

V.  Derware,  1197. 

V.  Dobson,  511. 

V.  Folkes,  388. 

V.  McAdams,  1298,  1299. 

V.  Reed,  1307. 

V.  Skinner,   1269. 

V.  Snyder,  892. 

V.  VanWinkle,  1286. 

V.  Whitney,  879. 
Berryhill  v.  Smith,  1313. 
Bertles  v.  Nunan,  381,  382,  495. 
Bethlehem  v.  Annis,  187,  1190. 
Bethum  v.  Turner,  824. 
Bettison  v.  Budd,  124. 
Beurhaus  v.  Cole,  615. 
Bevelot  v.  Lestrade,  944,  952. 
Beverly  v.  Burke,  1016. 
Bewick  v.  Whitfield,  578. 
Bibb  V.  Freeman,  912. 

V.  Hunter,  231. 

V.  Thomas,  958. 
Bible  Soc.  v.  Pendleton,  250. 
Bice  V.  Walcott,  818. 
Bick  V.  Seal,  1192. 
Bicket  V.  Polk,  602,  826. 
Bickerton  v.  Walker,  1231. 
Bickford  v.  Parson,  116. 
Biddel  v.  Brizzolara,  1220,  1221. 
Biddle  v.  Hussman,  126. 
Biddulph  V.  Biddulph,  256. 
Bidinger  v.  Bishop,  974. 
Bierer  v.  Fretz,  865. 
Big  Rapids  v.  Comstock,  817. 
Bigelow  V.  Bush,  1266. 

V.  Cady,  355. 

V.  Foss.  1048. 

V.  Gillott,  958. 

V.  Hoover,  1036. 


Bigelow  V.  Hubbard,  906. 

V.  Kinney.  1150. 

V.  Livingston,  938,  939. 

V.  Shaw,  598,  599. 

V.  Topliff.  1317. 
Biggert,  In  re,  261. 
Biggs  V.  Blue,  1316. 

V.  Hoddinott,  1192. 

V.  McCarty,  60. 
Bigler  v.  Waller,  1271. 
Bigley  v.  Jones,  1087. 

V.  Watson,  290,  299. 
Bilderback  v.  Boyce,  630. 
Billings  V.  Russell,  1111. 

V.  Taylor,  426,  563. 
Billington  v.  Welsh,   1090. 
Bills  V.  Bills,  333. 
Binbank  v.  PiUsbury,  754. 
Bindley's  Appeal,  1058. 
Bingham's  Appeal,  630. 
Bingham  v.  Barley,  1151. 

V.  Kirkland,  1080,  1081. 
Binkley  v.  Forkner,  542,  544. 
Binney  v.  Chapman,  122. 
Birch  V.  Linton,  1149,  1150. 
Birch-Wolfe  v.  Birch,  577. 
Bircher  v.  Parker.  550. 
Bird  V.  Bird,  39,  392,  882. 

v.  Decker,  919. 

V.  Higginson,  82,  700,  850. 

V.  Keller,  1240. 
Birdsall  v.  Cropsey,  1094. 

V.  Grant,  176. 
Birke  v.  Abbott,  1217.  1249,  1251. 
Birmingham  v.  Allen,  669,  670. 

V.  Anderson,  886. 

v.  Birmingham.  507,  508. 

V.  Kirwan,  453-456. 
Birmingham    Canal    Co.    v.    Cart- 
wright,  346. 
Birmingham   Traction   Co.   v.   Bir- 
mingham Ry.  &  Electric  Co.,  812. 
Birnie  v.  Main.  1084.  1225. 
Biron  v.  Scott,  220. 
Bischoff  V.  New  York  Elevated  R. 

Co.,  815. 
Bishop  of  Bath's  Case,  92. 
Bishop  V.  Banks,  652. 

V.  Bishop,  544. 

V.  Bleyer,  1014. 

V.  Douglass,  1218. 

V.  Howard,  153. 

V.  Howarth,  1281. 

V.  Hubbard.  1128. 

V.  Remple,  629. 

V.  Schneider,  1082. 


1336 


TABLE  OF  CASES. 


[references   ABE   TO   PAGES.] 


Bishop  V.  Truett,  1000. 

Bismarck  Building  &  Loan  Ass'n 

V.  Bolster,  1308. 
Bisquay  v.  Jeunelot,  693. 
Bissell  V.  Grant,  322. 

V.  New  York,  Central  R.  Co., 
896. 
Bittinger  v.  Baker,  434. 
Bizzell  V.  Nix,  1256. 
Bjmerland  v.  Eley,  937. 
Black  V.  Curran,  1122. 

V.  Epperson,  1133. 

V.  O'Hara,  1027. 

V.  Shreve,  933. 
Blackburn  v.  Clarke,  1316. 

V.  Stables,  239. 

V.  Woodings,  879. 
Blackenship  v.  Douglas,  1312. 
Blackman  v.  Riley,  894,  895. 
Blackmer's  Estate,  In  re,  510. 
Blackmore  v.  Boardman,  109,  118, 

354. 
Blades  v.  Higgs,  600. 
Blagge  V.  Miles,  628,  631. 
Blain  v.  Harrison,  470. 
Blair  v.  Burns,  882. 

V.  Carpenter,  1255. 

V.  McDonnell,   878. 

V.  Osborne,  59,  872. 

V.  Snodgrass,  266,  267. 
Blaisdell  v.   Portsmouth,  G.  F.  & 

C.  R.  Co.,  684,  700,  1012. 
Blake  v.  Dick,  99,  856. 

V.  Everett,  905.     . 

V.  Graham,  1079. 

V.  Hawkins,  628. 

V.  Heyward,  1307. 

V.  Sanborn,  1264. 

V.  Sanderson,  123. 
Blakeley  v.  Blakeley,  1153. 
Blakeman  v.  Blakeman,  1323. 
Blakemore  v.  Byrnside,  1180. 

V.  Stanley,  765. 
Blakeney  v.  Ferguson,  389,  432. 
Blanchard  v.  Blanchard,  286,  290, 
326. 

V.  Brooks,  280,  305,  1045. 

V.  Ellis,  1042. 

V.  Tyler,   243,   1094. 
Blaney  v.  Bearce,  1168. 

V.  Rice,  888. 
Blantire  v.  Whitaker,  123. 
Blatchford  v.  Newberry,  304,  337. 
Blatchley  v.  Osborn,  1086. 
Blauvelt  v.  Woodworth,  1301. 
Bledsoe  v.  Simms,  416. 


Bledsoe  v.  Wells.  844. 
Bleecker  v.  Smith,  179. 
Bliem  v.  Daubenspreck,  896. 
Blight  V.  Atwell,  889. 

V.  Brent,  13. 

V.  Schenck,  929,  930,  933. 
Bliss  V.  Collins,  785. 

V.  Hall,  654. 

V.  Johnson,  999. 

V.  West,  443. 

V.  Whitney,    539,    550-552. 
Block  V.  Isham,  692,  760. 
Blockley  v.  Fowler,  1272. 
Blodgett  V.  Hildreth,  228. 

V.  McMurtry,  1045. 

V.  Perry,  1046. 

V.  Stone,  673. 
Blomfield  v.  Eyre,  341. 
Blondeau  v.  Sheridan,  903,  916. 
Blood  V.  Blood,  422,  443. 

V.  Goodrich,  937. 

V.  Light,  1318,  1319. 

V.  Spaulding,  570. 
Bloodworth  v.  Stevens,  783  . 
Bloom  V.  Van  Rensselaer,  1268. 
Bloomer  v.  Henderson,  1089. 

V.  Merrill,  856. 

V.  Waldron,    618. 
Bloomfield   State   Bank  v.   Miller, 

1285. 
Bloomfield  &  R.  National  Gaslight 

Co.  V.  Calkins,  809,  813. 
Blore  V.   Sutton,  636. 
Blossom  V.  Blossom,  473. 
Blount  V.  Walker,  211,  215. 
Bluckley  v.  Daley,  1197. 
Blum  V.  Robertson,  142. 

V.  Schwartz,   1097. 
Blume  V.  McClurken,  798. 
Blumenberg  v.  Myres,  152-154. 
Blumenthal  v.  Jassoy,  1231. 
Blundell  v.  Catterall,  593. 
Blunt  V.  Norris,  1234. 
Board  of  Education  v.  Edson,  819, 
972. 

V.  First  Baptist   Church,   180. 

V.  Martin,  1006. 

V.  Van  Wert.  193,  194,  980. 
Board     of     Regents     of     Normal 

School  V.  Painter,  972,  979. 
Board  of  Trade  Telegraph  Co.  v. 

Barnett,  812. 
Board  of  Works  for  Wandsworth 
Dist.    V.    United    Telephone    Co., 
515. 
Boardman  v.  Dean,  860-,  931. 


TABLE  OF  CASES. 


1337 


[references   AEE   to   PAGES.] 


Boardman  v.  Larrabee,  1218,  1219. 
Boatman  v.  Lasley,  686. 
Bobo  V.  Richmond,  584. 

V.  Wolf,  668. 
Boddington  v.  Robinson,  870. 
Bodfish  V.  Bodfish,  1023,  1024. 
Bodine  v.  Arthur,  871. 
Bodwell  Granite  Co.  v.  Lane,  1190. 
Boenig  v.  Hornberg,  695. 
Bogert  V.  Bliss,  1175. 
Bogey  V.  Shute,  1267. 
Boggess  V.  Meredith,  394. 
Boggs  V.  Fowler,  1266. 

V.  Hargrave,  1265. 
Bogie  V.  Bogie,  927,  1190. 
Bohan  v.   Port  Jarvis   Gas   Light 

Co.,  654. 
Bohannon  v.  Combs,  453. 

V.  Hough,  922. 
Bohanon  v.  Walcot,  968. 
Bohny  v.  Petty,  585. 
Bohon  V.  Bohon,  299,  301. 
Boies  V.  Benham,  1292. 
Boisseau  v.  Fuller,  89. 
Boland's  Estate,  In  re,  509. 
Boley  V.  Barntio,  393. 
Boling  V.  Clark,  469. 
Bolivar  Mfg.  Co.  v.  Neponset  Mfg. 

Co.,  1026. 
Bolles  V.  Beach,  1218. 

V.  Chauncey,  1188. 

V.  Duff,  1257. 

V.  Sachs,  878. 
Boiling  V.  Carter,  1100. 
Boltz  V.  Stolz,  471. 
Bombarger  v.  Morrow,  322. 
Bombaugh  v.  Miller,  736. 
Bond  V.  Ward,  803. 

V.  Willis,  714. 
Bonds  V.  Strickland,  1133. 
Bone  V.  Tyrrell,  76. 
Bonelli    v.    Blakemore,    701,    703, 

707-709. 
Bonetti  v.  Treat,  798. 
Bonewits  v.  Wygant,  1039. 
Bonfoey  v.  Bonfoey,  467,  468. 
Bonham  v.  Badgley,  420. 

V.  Craig,  235. 

V.  Newcomb,  1170. 
Bonner  v.  De  Loach,  588. 

V.  Peterson,  477,  478. 
Bonomi  v.  Backhouse,  669. 
Boody  V.  Davis,  930,  1184. 

V.  McKenney,  1152. 
Booker  v.  Tarwater,  867. 

V.  Worrill.  1146. 


Bool  V.  Mix,  449,  1147.  1149,  1150. 
Boon  V.  Pierpont,  1176. 
Boone   v.   Armstrong,   1195. 

V.  Boone,  457. 

v.  Clark,  183,  1250. 

V.  Moore,  867. 

V.  Stover,  746. 
Booraem  v.  North   Hudson  Coun- 
ty Ry.  Co.,  976. 

V.  Wells,  631,  632. 
Boorman  v.  Tucker,  450. 
Boos  V.  Ewing,  1292. 
Boot  V.  Brewster,  1134. 
Booth,  In  re,  945. 
Booth  V.  Booth,  1276. 

V.  Goodwin,  512. 

V.  Hoskins,  1239. 

V.  Lambert,  478. 

V.  Oliver,  542. 

V.  Rome,  W.  &  O.  T.  R.  Co., 
650. 

V.  Starr,  9^7. 

V.  Turle,  235. 
Bopp  V.  Fox,  442. 
Boraston's  Case,  283,  294,  334. 
Borchardt  v.   Wausau   Boom   Co., 

660. 
Borcherling  v.  Katz,  805. 
Bord  V.  Cudmore,  797. 
Borden  v.  Croak,  1284. 

V.  Jenks,  459. 

v.  Vincent,   1022. 
Boreel  v.  Lawton,  97,  129. 
Boreham  v.  Byrne,  1131. 
Borland  v.  Marsnall,  487-489. 

V.  Meurer,  1248. 
Borman  v.  Sandgren,  146. 
Boroughes'  Case,  779. 
Borst  V.  Corry,  1279. 

V.  Empie,  704. 

V.  Nalle,  1305. 
Boscawen  v.  Bliss,  179. 
Boskowitz  V.  Davis,  401. 
Bosquett  v.  Hall.  1122,  1123. 
Bostick  V.  Blades,  170,  171. 

V.  Winton,  638. 
Boston  V.  Cummins,  1313. 

V.  Richardson,  812,  887,  890. 
Boston  Bank  v.  Reed,  1201. 
Boston  Ferrule  Co.  v.  Hills,  654. 
Boston  Franklinite  Co.  v.  Condit, 

395,  624. 
Boston  &  P.  R.  Corp.  v.  Doherty, 

738. 
Bostwick  V.  Frankfield,  264. 

V.  Williams,   908,   909. 


1338 


TABLE  OF  CASES. 


[eefekences  aee  to  pages. 


Boswell  V.  Goodwin,  1186,  1187. 
Bothell  V.  Sweet,  1126. 
Bottenuth  v.  St.  Louis  Bridge  Co., 

1037. 
Bottomley  v.  i^'airfax,  432. 
Botts  V.  Gooch,  413. 
Bouch  V.  Parsons,  1150. 
Bouknight  v.  Brown,  295,  326. 
Boutelle  v.  City  Sav.  Bank,  621. 
Bouton  V.  Doty,  609. 
Boutwell  V.  Steiner,  1266. 
Bouvier  v.  Stricklett,  1035,  1037. 
Bovee  v.  Hinde,  930. 
Bovey  v.  Smith,  617. 
Bowditch  V.  Banuelos,  245. 
Bowdre  v.  Hampton,  781,  798. 
Bowe  V.  Hunking,  99,  103. 
Bowen,  In  re,  362. 

V.  Anderson,  146,  148. 

V.  Beck,  751,  1217. 

V.  Bowen,  174,  185,  1124. 

V.  Brogan,  75. 

V.  Chase,  213. 

V.  Clarke,  855,  856. 

V.  Conner,  704. 

V.  Guild,  1000. 

V.  Haskell,  857. 

V.  Julius,  1235. 

V.  Kurtz,  1218. 

V.  Lingle,  433. 

V.  McCarthy,  1284. 

V.  Phinney,  1298,  1299. 

V.  Ratcliff,    1184. 

V.  Team,  737. 

V.  Wendt,  1022. 
Bowes  V.  Bowers,  530. 

V.  Goslett,  333. 

V.  Law,  765. 

V.  Suffolk  Mfg.  Co.,  730. 
Bowie  V.  Hall,  1276. 
Bowles'   Case,   297,    311,    559,   570, 

578,  579. 
Bowles  V.  Poore,  79. 
Bowling  V.  Burton,  897. 

V.  Cook,  1232. 

V.  Crook,   178. 

V.  Dobyn,  334. 
Bowlsby  V.  Speer,  664. 
Bowman  v.  Bailey,  433. 

V.  Faw,  1312. 

V.  Foot,  174. 

V.  Robb,  923. 

V.  Wathen,  11. 
Bowne  v.  Lynde,  1224. 

V.  Potter,  443. 
Bowser  v.  Bowser,  232. 


Bowser  v.  Scott,  803. 
Boxheimer  v.  Gunn,  1094. 
Boyd,  In  re,  288,  345,  1306. 
Boyd's  Estate,  In  re,  647. 
Boyd  V.  Beck,  1012. 

V.  Belmont,  916. 

V.  Boyd,  399. 

V.  Carlton,  476. 

V.  Conklin,  664. 

V.  Dowie,  582. 

V.  Graves,  584. 

V.  Harrison,  433,  467. 

V.  Hunter,  428,  438. 

V.  Lammert,    695. 

V.  McCombs,  773. 

V.  McLean,   230. 

V.  Slayback,  931. 

V.  Woolwine,  1029. 
Boyer  v.  Berryman,  1155. 
Boyers  v.  Newbanks,  478. 
Boyett  V.  Potter,  1322. 
Boykin  v.  Ancrum,  77. 

V.  Ciples,  414. 

V.  Rain,  411,  498,  499. 
Boyle  V.  Ferry,  1315. 

V.  Tamlyn,   588. 
Boynton  v.  Rees,  878. 

V.  Winslow,   1097. 
Bozarth  v.  Landers,  1262. 

V.  Largent,  501. 
Bozeman  v.  Bishop,  73. 

V.  Bozeman,  1059. 

V.  Browning,  1150,  1151. 
Brace  v.  Duchess  of  Marlborough, 

6,  1243,  1305. 
Bracken  v.  Cooper,  399. 
Bracket  v.  Alvord,  797. 
Brackett  v.  Baum,  447. 

V.  Goddard,  526. 

V.  Persons  Unknown,  823. 
Bradburn  v.   Morris,  723. 
Bradbury  v.  Davenport,  1170. 

V.  Davis,  862. 

V.  Weight.  777. 
Braden  v.  Graves,  1248. 
Bradford  v.  Cressey,  892. 

V.  Griffin,  62. 

V.  Monks,  621,  625. 

V.  Pickles,  665,  667. 

V.  Randall,  923. 
Bradfords  v.  Kent,  458. 
Bradish  v.  Schenck,  534. 
Bradley  v.  Bailey,  523. 

V.  Byram,  1314. 

V.  Chester  Valley  R.  Co.,  1258, 
1268. 


TABLE  OP  CASES. 


1339 


[references  are  to  pages.] 


Bradley  v.  Covel,  148. 

V.  Holdsworth,  13. 

V.  Merrill.  12U7. 

V.  Simpson,  1302. 

V.  Snyder,  1242,  1265. 

V.  Walker,  766. 

V.  West,  1017. 
Bradley's  Fish  Co.,  1022. 
Bradner  v.  Faulkner,  525. 
Bradshaw  v.  Eyre,  748. 
Bradstreet  v.  Clark,  165,  174. 
Bradt  v.  Church,  793. 

V.  Hodgdon,  606. 
Brady  v.  Banta,  509. 

V.  Gray,  417. 

V.  Kreuger.  402,  1128. 
Bragdon  v.  Hatch,  1271. 
Brainard  v.  Cooper,  1258,  1265. 
Brake  v.  Brownlee,  1260. 
Braman  v.  Bingham,  930,  934. 
Bramberry's   Estate,   382. 
Brame  v.  Craig,  1132. 
Bramhall  v.  Flood,  1185. 

V.  Harris,  255. 
Branch  v.  Doane,  84. 

V.  Polk,  381,  382. 
Brande  v.  Grace,  706. 
Brandies  v.  Cochrane,  611,  644. 
Brandon  v.  Leddy,  881. 

V.  Robinson,  414,  1141. 
Branham  v.  San  Jose,  852. 
Brann  v.  Monroe,  928,  931. 
Brannigan  v.  Murphy,  1139. 
Brant  v.  Gelston,  315. 

V.  Virginia   Coal    &    Iron   Co., 
1046. 
Brantley  v.  Huff,  896. 

V.  Wolf,  1148,  1150,  1151. 
Brashear  v.  Macey,  577. 
Brastow  v.  Barrett,  1197,  1199. 

V.  Rockport  Ice  Co.,  596,  599. 
Brattle    Square   Church   v.   Grant, 

176,  195,  280,  358,  362. 
Brattleboro  v.   Mead,  362. 
Brawford  v.  Wolfe,  485. 
Brawley  v.  Catron,  1288,  1289. 
Braxon  v.  Bressler,  890. 
Braxton  v.  Freeman,  454. 
Bray  v.  Bree,  647. 

V.  Neill,  458. 
Brazee  v.  Lancaster  Bank,  1243. 
Breckenridge  v.  Ormsby,  1153. 
Bredell    v.    Collier,    291,    333,    334, 

628. 
Bredenburg  v.  Landrum.  1169. 
Breeding  v.  Davis,  495,  499,  502. 


Breit  v.  Yeaton,  626. 
Brem  v.  Lockhart,  1094. 
Bremer  v.  Calumet  &  Chicago  Ca- 
nal &  Dock  Co.,  1240. 
Brenham  v.  Davidson,  59. 
Brennan  v.  Whitaker,  543,  546. 
Brenner  v.  Gauch,  463. 
Bresnahan  v.  Gresnahan,  1257. 
Brett  V.  Carter,  1173. 

v.  Clowser,  708. 
Brewer  v.  Boston,  587. 

V.  Chappell,  1322. 

V.  Connell,  445. 

V.  Cox,  292. 

V.  Hardy,  320,  321. 

V.  Herbert,  265. 

V.  Keeler,  1009. 

V.  Manhale,  753,  755,  765,  766. 

V.  Maurer,  1220. 

V.  Stevens,  90,  93. 

V.  Van  Arsdale,  434. 

V.  Wall,  385. 
Brewster  v.  Carner,  1233. 

V.  Hill,  84. 

V.  Kidgile,  752,  783. 

V.  Kitchin,    752. 
Brewton  v.  Watson,  320. 
Brice  v.  Randall,  714. 

v.  Smith,  63. 
Bridge  v.  Ward,  1137,  1140,  1308. 
Bridgeport  Electric   &   Ice  Co.  v. 

Meader,  1283. 
Bridger  v.  Pierson,  874,  875. 
Bridges  v.  Bidwell,  1148,  1232. 

v.  McKenna,  416. 

V.  Purcell.  684. 
Bridgewater  v.  Gordon,  305. 
Bridgman  v.   St.  Johnsbury  &  L. 

C.   R.   Co.,   1073. 
Briel  v  Natchez,  975. 
Briggs  V.  Briggs,  943. 

v.  Hale,  792. 

V.  Haynes,  695. 

V.  Klosse,   727. 

V.  Lewiston   &   A.    H.   R.   Co., 
815. 

V.  Morse,  914. 

V.  Thompson,  127. 

V.  United  States,  1171. 
Brigham  v.  Brown,  1183. 

V.  Eveleth,  393. 

V.  Potter,  1192. 
Bright  V.  Boyd,  553. 

V.  Buckman,  1082. 

V.  Walker,   734. 
Brigstocke  v.  Brigstocke,   520. 


1340 


TABLE  OF   CASES. 


[EEFEBENCES  ABE  TO  PAGES. J 


Brill  V.  stiles,  843. 

V.  Wright,  1282. 
Brimmer  v.  Boston,  910. 
Brinckerhoff  v.  Lansing,  1188. 
Brinckmeyer  v.  Browneller,  1187. 
Brinkley  v.  Bethel,  921. 

V.  Hambleton,   121. 
Brinkman    v.    Jones,    1085,    1089, 

1179,  1200. 
Briscoe  v.  McElween,  801. 

V.  Power,   1224. 
Brison  v.  Brison,  235. 
Bristol  V.  Carroll  County,  1015. 
Bristol-Goodson  Electric   Light  & 
Power  Co.  v.  Bristol,  etc.,  Co., 
1304. 
Bristol    Hydraulic    Co.    v.    Boyer, 

661. 
Bristol  Sav.  Bank  v.  Stiger,  1218. 
Bristow  V.  Boothby,  356,  646. 
British    Mut.    Inv.    Co.    v.    Smart, 

1322. 
Brittin  v.  Handy,  399,  401. 
Britton's  Appeal,    1313. 
Britton  v.  Hunt,  1266. 

V.  Thornton,  329. 
Broad  v.  Selfe,  1192. 
Broadbent    v.    Ramsbotham,    665, 

668,  1030. 
Broadway  v.  State,  173. 
Broadway   Nat.    Bank   v.    Adams, 

1141. 
Broadwell  v.  Phillips,  1044. 
Brobst  V.  Brock,  1236,  1249. 
Brock  V.  Brock,  235. 

V.  Dole,  568. 

V.  Eastman,  406. 

V.  O'Dell,  879. 
Broder  v.  Natoma  Water  &  Min- 
ing Co.,    835. 
Brograve  v.  Winder,  948. 
Brokaw  v.  McDougall,  510. 

V.  Ogle,  506,  508,  509,  1127. 
Brolasky  v.  Gaily,  258. 
Bromfield  v.  Crowder,  291,  334. 
Bronk  v.  Becker,  695. 
Bronson   v.    Coffin,    694,    753,    756, 
758,   906,   1029. 

V.  Paynter,  402. 

V.  Wanzer,  1091. 
Brooke,  In  re,  208. 

V.  Washington,  388. 
Brookeville  &  M.  Hydraulic  Co.  v. 

Butler,  599. 
Brookhaven  v.  Baggett,  98. 

V.  Smith,   586. 


Brookhaven  v.  Strong,  601,  825. 
Brookings  v.  White,  1189. 
Brooklyn    Park    Com'rs    v.    Arm- 
strong, 821. 
Brooks  V.  Belfast,  362. 

V.  Brooks,  1244. 

V.  Cedar    Brook    &    S.    C.    R. 
Improvement  Co.,  826. 

V.  Clifton,   568. 

V.  Collins,  1123. 

V.  Curtis,  692,  712,  726,  727. 

V.  Dalrymple,  1183. 

V.  Galster,  548. 

V.  Kearns,  1145. 

V.  Kip,  342. 

V.  McMeekin,  444. 

V.  Maltledge,   1250. 

V.  Moody,  904. 

V.  Reynolds,  687,  729. 

V.  Woods,  425. 
Brookville  &  M.  Hydraulic  Co.  v. 

Butler,  688. 
Broom  v.   Hore,   786. 
Broome  v.  Davis,  1131. 

V.  Richeson,  891,  892. 
Brophy  Min.  Co.   v.   Brophy  Gold 

&  Silver  Min.  Co.,  1180. 
Brossart  v.  Corlett,  724. 
Brothers  v.   Cartwright,   256,   258. 

V.  Hurdle,  525. 
Brough  V.  Higgins,  74. 
Broughton  v.  Langley,  208,  212. 

V.  Randall,  423. 
Broumel  v.  White,  553. 
Brower  v.  Hunt,  990. 

V.  Witmeyer,  1234. 
Brown  v.  Alabaster,  708. 

V.  Allen,  872. 

v.  Badeau,  1301. 

V.  Baldwin,  543. 

V.  Banner    Coal    &    Coal    Oil 
Co.,   1092. 

V.  Baraboo,  380. 

V.  Baron,  1245,  1246. 

V.  Bates,  1196,  1264. 

V.  Beecher,  520. 

V.  Bennett,  181. 

V.  Bocquin,  1018. 

V.  Bowen,  660,  731,  1048. 

V.  Bragg,  134. 

V.  Bridges.  93. 

V.  Bronson,  448. 

V.  Brown.    220,    235,    352,    509, 
877. 

V.  Bryant,  315. 

V.  Cairns,  855,  856. 


TABLE  OF  CASES. 


1341 


[refebences  aee  to  pages.] 


Brown  v.  Caldwell,  163-165. 
V.  Cantrell,  485. 
V.  Cascaaeen,  1276. 
V.  Cave,  437. 

V.  Chadbourne,  594,  827,  828. 
V.  Chicago,  B.  &  K.  C.  Ry.  Co., 

1008. 
V.  Coats,  534. 
V.  Cole,  1235. 
V.  Cooper,  396. 
V.  Dean,  1178. 
V.  Dewe,  1182. 
V.  Dickerson,   913. 
V.  Esterhazy,   1139. 
V.  Freed,  1154. 
V.  Fulkerson,  307. 
V.  Gaffney,  1185,  1244. 
V.  Hamill,  1322. 
V.  Hardcastle,   1255. 
V.  Heard,  895. 
V.  Higgs.  612,  620. 
V.  Hodgdon,  457. 
V.  Hoover,  1189. 
V.  Jaquette,  535. 
V.  Keller,  122,  134,  156. 
V.  Kimbrough,   417. 
V.  Klnsey,  1191. 
V.  Knapp,  1281. 
V.  Lapham,    1252. 
V.  Lillle,  538. 
V.  McCormick,   924. 
V.  McCune,  1148. 
V.  McKay,  1254. 
V.  Manter,  870. 
V.  Mercantile  T.  &  D.  Co.,  246. 
V.  Morris,  517. 
V.  O'Brien,  763. 
V.  Phillips,  620. 
V.  Pierce,  1312. 
V.  Pridgen,  386,  947. 
V.  Renshaw,  642. 
V.  Richards,  427. 
V.  Riggin,   969. 
V.  Robins,  670. 
V.  Scherrer,  962. 
V.  Simons,   1222-1225. 
V.  Smith,  1271. 
V.  South    Boston    Sav.    Bank, 

1202. 
V.  Spilman,  518,  519,  745. 
V.  Stackhouse,  804. 
V.  Starr,  1126. 
V.  Stewart,  1236. 
V.  Stillman,  1220. 
V.   Stone,   725. 
V.  Storey,   1205. 


Brown  v.  Thorndike,  960. 

V.  Thurston,   143,  525-527. 

v.  Tyler,  1263. 

V.  Union    Depot,    St.    Ry.    & 

Transfer  Co.,  1045. 
V.  Warren,  882. 
V.  Watson,  1132. 
V.  Welch,  1094. 
V.  Wellington,  391. 
V.  Werner,    1032. 
V.  Wheeler,    404. 
V.  Williams,  448. 
Brown's  Trust,  In  re,  634. 
Browne  v.  Browne,  1256,  1258. 

V.  Trustees  of  Methodist  Epis- 
copal Church,  735. 
Browning  v.  Atkinson,  887. 

V.  Harris,   1121. 
Brownson  v.  Hull,  379,  381,  382. 
Brownsville  v.  Basse,  843. 
Brownsword   v.   Edwards,  328. 
Broyles  v.  Waddel,  75,  1286. 
Bruce  v.  Bissell,  290. 
V.  Nicholson,   1305. 
V.  Osgood,  464. 
v.  Washington,  998. 
V.  Wood,  412. 
Bruck  V.  Tucker,  965. 
Bruensmann  v.  Carroll,  887. 
Bruerton's  Case,  786. 
Bruley  v.  Garvin,  684. 
Brumagim  v.  Bradshaw,  1007. 
Brumfield  v.  Droox.  6U6,  613. 
Brumfitt  V.  Roberts,   697. 
Brummell  v.  Harris,  583,  586. 

V.  Macpherson,  176. 
Bruner  v.  Bateman,  505. 
V.  Briggs,   491. 
V.  Palmer,  694. 
Brunson  v.  Brooks,  1089. 
Brunswick-Balke-Collender   Co.   v. 
Brackett,    926. 
V.  Rees,  104. 
Brunt  v.  Brunt,  957. 
Brush  V.  Wilkins,  964. 
Bryan  v.  Batcheller,  465. 
V.  Bradley,  205. 
V.  Cowart,  1177. 
V.  East  St.  Louis,  1022. 
V.  Pinney,  1046. 
V.  Ramirez,  1045. 
V.  Weems,  221. 
V.  Whistler,  730. 
Bryant  v.  Damon.  1229. 
V.  Duffy,  1316. 
V.  Erskine,  1190. 


1342 


TABLE  OF  CASES. 


[BEFEBENCES    ABE   TO   PAGES.] 


Bryant  v.  Lefever,  655. 
Brydges  v.  Brydges,  312. 
Brydges  v.  Chandos,  942,  965. 
Buchan  v.  King,  401. 
Buchanan  v.  Balkum,  1091. 

V.  Berkshire     Life     Ins.     Co., 
1254. 

V.  Deshon,  1158. 

V.  Kimes,  1313. 

V.  Lloyd,  1281. 

V.  Monroe,  1266. 
Buck  V.  Buck,  267. 

V.  Fischer,  1264. 

V.  Lantz,  307. 

V.  Paine,  1169,  1322. 

V.  Piekwell,  530. 

V.  Squiers,  891,  894. 

V.  Swazey,  231. 
Buckelew  v.  Snedeker,  392. 
Bucker  v.  Reeds,  1042. 
Buckeridge  v.  Ingram,  13. 
Buckingham  v.  Elliott,  515, 

V.  Jacques,  990. 

V.  Orr,  922. 
Buckinghamshire  v.  Drury,  460. 
Buckler  v.  Hardy,  279. 
Buckley  v.  Daley,  1196. 

V.  Kenyon,  773. 

V.  Wells,  416. 
Bucklin  v.  Bucklin,  1183. 
Buckmaster  v.  Harrop,  267.  ^ 
Buckont  V.  Swift,  545,  1211,  1213. 
Buckworth  v.  Thirkell,  431,  492. 
Budd  V.  Hiler,  526. 
Buddington  v.  Bradley,  662. 
Buffalo  City  Cemetery  v.   City  of 

Buffalo,  699. 
Buflfalo,  N.  Y.  &  E.  R.  Co.  v.  Stige- 

ler,  888. 
Buffalo    Steam    Engine   Works   v. 

Sun  Mut.  Ins.  Co.,  1208. 
Buffinton  v.  Fall  River  Nat.  Bank, 

458. 
Buffum  V.  Buffum,  387. 

V.  Deane,  775. 

V.  Hutchinson,  48. 
Buford  V.  Houtze,  588. 
Bukup  V.  Valentine,  802. 
Bulkley  v.  Chapman,  1263. 

V.  Dolbeare,  578. 
Bull's  Petition,  734,  1271. 
Bull  V.  Church,  455. 

V.  Kentucky  Nat.  Bank,  1140. 

V.  Shepard,  1171. 
Bullard  v.  Briggs,  467,  469. 

V.  Harrison,  714. 


Bullard  v.  Leach,  1251. 
Bullene  v.  Hiatt,  1130,  1316. 
Bullerdick  v.  Wright,  627,  628. 
Bullitt  V.  Taylor,  931,  1112. 
Bullock  V.  Battenhouser,  1184. 

V.  Caldwell,  59. 

V.  Finch,  472. 

V.  Whipp,  1284. 

V.  Wilson,   594. 
Bulpit  V.  Matthews,  588,  589. 
Bulwer's  Case,  797. 
Bulwer  v.  Bulwer,  523. 
Bunce  v.  Wolcott,  1004. 
Bunch  V.  Grave,  1252. 

V.  Nicks,  281. 
Bundy  v.  Bundy,  58. 
Bunker  v.  Barron,  1177. 
Bunn  V.  Lindsay,  1130. 
Bunting  v.  Foy,  434. 

V.  Speek,  290. 
Burank  v.  Babcock,  267. 
Burbank  v.  Day,  479. 

V.  Pillsbury,  750,  763,  906. 

V.  Whitney,  340. 
Burch  V.  Atchison,  510. 
Burden  v.  Thayer,  112. 
Burdeno  v.  Amperse,  1146. 
Burdett  v.  May,  1004. 
Burdick  v.  Cheadle,  104. 
Burdis   v.    Burdis,   165-167. 
Burford  v.  Rosenfield,  1261. 
Burge  V.  Hamilton,  969. 

V.   Smith,  452,  866. 
Burger  v.  Grief,  1224. 

V.  Potter.  267. 
Burgess  v.  Muldoon,  498. 

V.  Pollock,    1153. 

v.  Wheat,  1194. 
Burgh  V.  Francis,  1284. 
Burgham  v.  Weidenwax,  273. 
Burgner  v.  Humphrey,  672,  690, 
Burgwyn  v.  Lockhart,  818. 
Burk   V.   Hill,   905,   908. 
Burke  v.  Smith,  652. 
Burke  County  v.  Catawba  Lumber 

Co.,  827. 
Burkhardt  v.  McClellan,  1315. 
Burkhart  v.   Howard,   1294. 
Burkholder  v.  Casad,  928. 
Burkitt  v.  Harper,  1300. 
Burleigh  v.  Clough,  326,  332. 

V.  Coffin,    411. 
Burleson  v.  McDermott,  1099, 
Burleyson  v.  Whitley,  166. 
Burn  V.  Phelps,  127. 


TABLE  OF  CASES. 


1343 


[references  are  to  pages.] 


Burnaby  v.    Equitable   Reversion- 
ary Interest  Soc,  373. 
Burnell  v.  Maloney,  1014. 

V.  Martin,  1276. 
Burnes  v.  McCubbin,  106. 
Burnet  v.  Burnet,  435. 
Burnett  v.  Burnett,  57. 

V.  Lynch,  751. 

V.  Rich,  123. 

V.  Wright,  1185. 
Burnham  v.  Burnham,  167. 

V.  Dorr,  1252. 

V.  Kempton,  1026. 

V.  McQuesten,  1025. 

V.  O'Grady,  853. 
Burnley  v.  Stevenson,  221,  245. 
Burns  v.  Berry.  1232,  1234. 

V.  Bryant,    138,   142. 

v.  Burns,  957. 

v.  Cooper,  533. 

v.  Keas,  506,  507,  1122. 

V.  Lynde,  468,  868,  880. 

V.  Travis,  961. 
Burnside  v.  Terry,  1169. 

V.  Twitchell,  550,  1212. 
Burnsides  v.  Wall,  256. 
Burr  V.  Beers,  1219. 

V.  Hamer,  695. 

V.  Lancaster,  908. 

V.  Maultsby,  1301,  1303. 

V.  Mueller,  399. 

V.  Sim,  262. 

V.  Smith,  249. 

V.  Spencer,  1197. 

V.  Stenton,  97. 
Burrall  v.  Bender,  447. 
Burris  v.  Fitch.  586. 

v.  Page,  429. 

V.  People's  Ditch  Co.,  725. 
Burritt  v.  Silliman,  245. 
Burrough  v.  Foster,  63,  64. 
Burroughs  v.  Saterlee,  668. 
Burrows  v.  Gallup,  1000,  1009. 
Burrus  v.  Wilkinson,  909. 
Burson  v.  Blackley,  1225. 
Burt  V.  C.  W.  Cook  Sheep  Co.,  482. 

V.  Timmons.  1112. 
Burtenshaw  v.  Gilbert,  957. 
Burton  v.  Mill,  1130. 

V.  Reeds,  913. 

V.  Smith,  111. 
Burwell  v.  Hobson,  660,  713. 
Bury  V.  Young,  933. 
Busey  v.  Reese,  1094. 
Bush  V.  Bradley,  489. 

V.  Cooper,  1189. 


Bush  V.  Delano,  953. 

V.  Faris,  1307. 

V.  Lathrop,   1231. 

V.  Lisle,  952. 
Bushe's   Case,    453. 
Bushell  V.  Passmore,  933. 
Bushfield  v.  Meyer,  1228,  1254. 
Buss  V.  Dyer,  710. 
Buszard  v.  Capel,  774. 
Butcher  v.  Butcher,  637. 

V.  Creel,  873. 

V.  Yocum,  1086. 
Bute  V.  Glamorganshire  Canal  Co., 

582. 
Butler  V.  Baker,  935. 

V.  Cheatham,   422. 

V.  Davis,  1129. 

V.  Drake,  1007. 

V.  Fitzgerald,  448. 

V.  Gale,  905,  908.     • 

V.  Gazzam,  618. 

V.  Grand  Rapids  &  I.  R.  Co., 
890. 

V.  Howe,  1004. 

V.  Manny,  94. 

V.  Maury,  1097. 

V.  Miller,  1189. 

V.  Peck,  664,  665. 

V.  Ralston,  60,  61. 

V.  Roys,  395. 

V.  Stevens,  1090. 
Butman  v.  James,  1196. 
Butrick  v.  Tilton,  402,  882. 
Butt  v.  Ellett,  780,  1171,  1174. 

v.  Imperial  Gas  Co.,  651. 
Butterfield  v.  Beall,  411,  511. 

V.  Farnham,  1271. 

V.  Reid,  307,   736,   738. 

V.  Smith,  1092. 
Butterworth  v.  Crawford,  706,  707. 
Buttlar  v.  Rosenblath,  381,  382. 
Buttrick  v.  Holden,  1086. 

V.  Wentworth,  1273. 
Butts  V.  Trice,  462. 
Buzby's  Appeal,   300. 
Buzick  V.  Buzick,  468. 
Buzzell  V.  Gallagher,  403,  404. 
Byassee  v.  Reese,  531. 
Byers  v.  Byers,  403. 

V.  Locke,  877. 

V.  McClanahan,  880,  928. 
Byington  v.  Buckwalter,  1241. 
Byles  v.  Tome,  1234. 
Byng  V.  Byng,  60. 
Bynum  v.  Thompson,  1016. 
Byrne  v.   Taylor,   1266. 


1344 


TABLE  OF  CASES. 


[beferences  aee  to  pages.] 


Byrom  v.  Chapin,  1213. 

C. 

Cabeen  v.  Mulligan,  1134. 
Cabot  V.  Kingman,  669. 
Cadell  V.  Allen,  937. 

V.  Palmer,  350,  351. 
Cadmus  v.  Fagan,  9U4. 
Cadogan  v.  Kennett,  775,  1114. 
Cadwalader  v.  Bailey,  686,  687,  742. 
Caeman  v.  Van  Harke,  961. 
Cagle  V.  Parker,  700,  920. 
Cahill  V.  Palmer,  1008. 
Gaboon  v.  Bayand,  747. 

V.  Levy,  1303. 
Caillaret  v.  Berchard,  471. 
Cain  V.  Cain,  393,  397. 

V.  Roe,  1119. 
Caines  v.  Grant,  374,  375. 

V.  Green  Pond  Iron  Co.,  563. 
Cake's  Appeal,   1314. 
Calder  v.  Chapman,  1080,  1081. 
Caldwell  v.  Fulton,   517,  520,  745, 
884. 

V.  Hall,  1202,  1206. 

V.  Slade,  105. 

V.  Thorp,  1003. 
Caledonian  Ry.  Co.  v.  Sprot,  713. 
Calhoun  v.  McLendon,  1124. 

V.  Williams,  1122-1124. 
Calhoun  County  v.  American  Emi- 
grant Co.,  932. 
Call  V.  Leisner,  1263. 
Callahan  v.  Davis,  861. 
Callanan  v.  Merrill,  1092. 
Callen  v.  Hilty,  679. 
Callender  v.  Marsh,  816. 
Calvert  v.  Aldrich,  398. 

V.  Rice,  484,  566. 
Calvo  V.  Davies,  1218,  1219. 
Camden   &   Atlantic   Land   Co.   v. 

Lippincott,  1037. 
Cameron  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.,  1012. 

V.  Fay,  1133. 

V.  Gebhard,  1125. 

V.  Irwin,    1120,    1199. 

V.  Thurmond,  395. 
Camley  v.  Stanfield,  124. 
Camp,  In  re,  493. 
Camp  V.  Bates,  577. 

V.  Camp,  89. 

V.  Cleary,  1137. 

V.  Coxe,  1195. 

V.  Quimby,  495. 


Camp  V.  Whitman,  721. 
Campbell's  Appeal,  427. 
Campbell's  Appeal  from  Probate, 

1159. 
Campbell  v.  Braden,  1013. 

V.  Campbell,  122,  233,  442. 

V.  Dearborn,   1179,    1182. 

V.  French,  961. 

V.  Herron,  375. 

V.  Jacobson,   1046. 

V.  Johnson,  627,  629. 

V.  Jones,  934. 

V.  Kansas,   976,  979. 

V.  Knights,  125L 

V.  Kuhn,  937,  1155. 

V.  Leach,  635. 

V.  McBee,  497. 

V.  McClure,  904. 

V.  McCoy,   688. 

V.  Mesier,  727. 

V.  Murphy,  481. 

V.  Noble,  313. 

V.  Porter,  93. 

V.  Poultney,  1199. 

V.  Prestons,  239. 

V.  Proctor,  141. 

V.  Race,  816. 

V.  Roddy,  542-544. 

V.  Seaman,  653,  654. 

V.  Smith,  1217. 

V.  Tompkins,  1183. 

V.  Wallace,  1000. 

V.  Whitson,  876. 
Canada's  Appeal,  947. 
Canal  Fund  Com'rs  v.  Kempshall, 

891. 
Canby  v.  Porter,  499. 
Canedy  v.  Marcy,  879. 
Canfield  v.  Andrew,  658. 

v.  Clark,  1014. 

V.  Hard,  1127. 
Cannon    v.    Barry,    367,    564,    565, 
573,  577. 

V.  Boyd,  708. 

V.  Hatcher,  93. 

V.  Lomax,  406. 

V.  Stockmon,  998. 

V.  Villars,  720. 

V.  Wilbur,   98. 
Canny  v.  Andrews,  735,  737. 
Cape  Fear   &   D.   R.   Nav.   Co.  v. 

Wilcox,  168. 
Capek  V.  Kropik,  511. 
Capron  v.  Greenway,  734. 
Carbrey  v.  Willis,  709. 
Garden  v.  Lane,  1097. 


TABLE  OF  CASES. 


1345 


[REFEBENCES    ABE   TO   PAGES.] 


Cardigan  v.  Armitage,  741. 
Care  v.  Keller,  482. 
Carey  v.  Boyle,  1129,  1290. 

V.  Brown,  220. 

V.  Buntain,  470. 

V.  Daniels,  673. 

V.  Rae,  732,  816. 

V.  West,  470. 
Carleton  v.  Redington,  684. 
Carley  v.  Lewis,  781. 
Carlin  v.  Chappel,  672. 

V.  Paul,  717. 

V.  Ritter,  548,  552. 
Carlisle  v.  Cooper.  722,  1021,  1026. 

V.  Jumper,  1076. 
Carlow  V.  Aultman,  1158. 
Carlton  v.  Blake,  712. 

V.  Carlton,  948. 
Carman  v.  Mclncrow,  1299. 
Carnahan  v.  Tousey,  1221. 
Carnall  v.  Wilson,  450,  470,  472. 
Carnegie  Natural  Gas  Co.  v.  Phil- 
adelphia Co.,  186. 
Carney  v.  Byron,  247. 
Carondelet  v.  St.  Louis,  823. 
Caroon  v.  Cooper,  434. 
Carpenter's    Estate,    1161. 
Carpenter  v.  Allen,  542. 

V.  Black  Hawk  Gold   Min.  Co., 
1285. 

V.  Bowen.   1195. 

V.  Brownlee,  509. 

V.  Carpenter,  399,  400. 

V.  Cincinnati    &    Whitewater 
Canal  Co.,  1212. 

V.  Cook,  694. 

V.  Dexter,  926. 

V.  Garrett,   489. 

V.  Ingalls,  1266. 

V.  Koons,  1224. 

V.  Lewis,  1178. 

V.  Longan,  1174,  1227,  1231. 

V.  Providence         Washington 
Ins.  Co.,  1208-1210. 

V.  Thayer,  389. 

V.  Van  Olinder,  315. 
Carpenteria  School  Dist.  v.  Heath, 

972. 
Carpentier  v.  Mendenhall,  391. 

V.    Webster,  391. 
Carper  v.  Munger,  1263. 
Can-  V.  Anderson.  489. 

V.  Branch,  257. 

V.  Caldwell.  1248. 

V.  Clough,  1152. 

V.  Estill,  60. 
Real  Prop.— 85. 


Carr  v.  Givens,  487,  494. 

V.  Hobbs,  1287. 

V.  Lowry's  Adm'x,  754,  758. 

V.  Richardson,   215,    848. 

V.  Thomas,   1317. 

V.  Thompson,  1292. 

V.  Wallace,  822. 
Carrel  v.  Read,  130. 
Carrico  v.  Farmers'  &  Merchants' 

Nat.  Bank,  1291. 
Carrigan  v.  Rowell,  511,  1122. 
Carrington  v.  Goddin,  1119. 

V.  Richardson,   1146. 
Carroll  v.  Ballance,  133,  1196. 

V.  Bancker,    1322. 

V.  Burns,  61. 

V.  Hause,  953. 

V.  Maydwell,  67. 

V.  Norwood,  402. 

V.  Safford,  843. 

V.  Stewart,  626. 
Carroll  County  Academy  v.  Galla- 
tin Academy,  163. 
Carson  v.  Blazer,  594,  825. 

V.  Broady,  125.  397,  401,  1011. 

V.  Carson,  639. 

V.  Mills,  1018. 

V.  Murray,  450. 

V.  Percy,  764. 

V.  Ray,  832. 

V.  Smith,  616. 
Carter  v.  Barnes,  881. 

V.  Branson,  16o.  180. 

V.  Champion,   1081. 

V.  Chandron,  923,  938. 

V.  Chevalier,  1016. 

V.  Dale,  493,  497,  502. 

V.  Denman,  469,  904,  906,  915. 

V.  Dixon,  953. 

V.  Goodin,   436. 

V.  Hallahan,  443. 

V.  Hawkins.  1082. 

V.  Holman,  1283. 

V.  Penn,  922. 

V.  Portland,  977. 

V.  Randolph,  509. 

V.  Rodewald,   1320. 

V.  Ruddy,  843. 

V.  Thurston,  827. 

V.  Tinicum  Fishing  Co.,  1021, 
1029. 

V.  Warne,  110. 

V.  Williams,  ^94. 

V.  Williamson,  529. 

V.  Worrell,  1281. 
Cartwrlght,  In  re,  571. 


1346 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Cartwright  v.  Gardner,  180. 
Caruthers  v.  Caruthers,  46u,  463. 

V.  Hall,    1222. 

V.  Humphrey,  1169,  1237. 
Carver  v.  Carver,  879. 

V.  Detroit    &    L.    Plank   Road 
Co.,   82U. 

V.  Smith,  382. 
Carwright  v.  Maplesden,  738. 
Cary  v.  Daniels,  657,  905. 

V.  White,   1094. 
Casborne     v.     Scarre,     493,     1167, 

1194. 
Case  V.  Edgeworth,  844. 

V.  Favier,  974. 

V.  Green,  1013. 

V.  Hoffman,  665. 

V.  Minot,  706,  709,  710. 

V.  Owen,  375. 

V.  Phelps,  1111. 

V.  Weber,  679. 
Casebeer  v.  Mowry,  659,  660. 
Casey  v.  Gregory,  124. 
Caskey  v.  Brewer,  302. 
easier  v.  Gray,  496. 
Caspari  v.  First  German  Church, 

879. 
Casper  v.  Walker,  169. 
Cass  v.  Thompson,  427,  858. 
Cassedy  v.  Jackson,  1119,  1120. 
Casselman  v.  Packard,  1125. 
Cassem  v.  Kennedy,  167. 
Casserly  v.  Witherbee,  1240. 
Casson  v.  Dade,  950. 
Casterton  v.  Sutherland,  639. 
Castle  V.  Dod,  209. 

v.  Elder,  891,  892. 

V.  Kemp,  879. 

V.  Palmer,  1132. 
Castleberry  v.  Weaver,  1319. 
Castner  v.  Riegel,  694,  695,  1029. 
Castor  v.  Peterson,  385. 
Castro  V.  Geil,  1004. 
Caswell  v.  District,  534. 
Catasauqua   Nat.    Bank   v.    North, 

538. 
Cater  v.  North  Western  1  elephone 

Exchange  Co.,  812. 
Cathcart   v.  Bowman,  906. 

V.  Robinson,  1116. 
Catlett  V.  Catlett,  945. 
Catlin  V.  Decker,  1010,  1013. 

V.  Hurlburt,  900. 

V.  Valentine,  654. 

V.  Ware,  451,  4.76,  866. 
Catt  V.  Tourle,  765. 


Cattlin  V.  Brown,  352,  361. 
Cattley  v.  Arnold,  146. 
Cauley  v.  Lawson,  462. 
Cavanaugh  v.  Clinch,  152,  156. 
Cavarly,  In  re,  61. 
Cave  V.  Crafts,  708. 

V.  Holford,  965. 
Cavin  v.  Middleton,  1086. 
Cazenove  v.  Cutler,  1207. 
Cearnes  v.  Irving,  218. 
Cecconi  v.  Rodden,  913. 
Cecil  V.  Clark,  580. 

V.  Salisbury,  1152. 
Center  v.  Planters'  &  Merchants' 

Bank,  1263. 
Central     Bank     of    Frederick     v. 

Copeland,  927. 
Central  Kentucky  Lunatic  Asylum 

V.  Craven,  1130,  1134. 
Central    Park    Extension,    In    re, 

467. 
Central    Trust    Co.    v.    Kneelana, 

1173. 
Central  Wharf  &  Wet  Dock  Corp. 
V.   Proprietors   of   India  Wharf, 
732. 
Centralia  v.  Wright,  659. 
Chadbourn  v.  Johnston,  1266. 

V.  Rackliff,  1149. 
Chadeayne  v.  Robinson,  664. 
Chadock  v.  Cowley,  63,  302. 
Chadwell  v.  Chadwell,  587. 
Chadwick  v.  Davis,  895. 
Chaffee  v.  Atlas  Lumber  Co.,  1183. 

V.  Franklin,  436. 
ChafRn  v.  Kimball,  1115. 
Chahorn  v.  Hollenback,  1310. 
Chalfant  v.  Grant,  1128. 
Chalker  v.  Dickinson,  601. 
Challis  V.  Casborn.  1244. 

V.  Doe,  36u. 
Chalmers  v.  Smith,   140,  567,  568, 
574. 

V.  Storil,  456. 
Chamberlain,  In  re.,  ."522,  526. 

V.  Bell,  1082. 

V.  Brown,  1123. 

V.  Stearns,  1139. 

V.  Taylor,  1120. 

V.  Thompson,  46,  50,  879,  1168, 
1194,  1197. 
Chamberlayne  v.  Brockett,  363. 
Chambers  v.  Chambers,  76. 

V.  Furray,  824. 

V.  Pleak,   125. 

V.  St.  Louis,  249. 


TABLE  OF  CASES. 


1347 


[references  are  to  pages.] 


Chamblee  v.  Broughton,  317. 
Champernorn  v.  Gubb,  805. 
Champion  v.  Brown,  265,  267. 

V.  Hinkle,  1258,  1261. 
Champlin  v.  Champlin,  229,  444. 

V.  Pendleton,  S93. 

V.  Williams,  1247. 
Chance  v.  Branch,  1014. 

V.  McWhorter,    1094. 
Chandler  v.  Cheney,  382,  383. 

V.  Goodridge,   728. 

V.  Howland,  657. 

V.  Rider,  625. 

V.  Simmons,  1150,  1151. 
Chanet  v.  Villeponteaux,   623. 
Chaney  v.  Chaney,  436. 

V.  State,  1321. 
Chapel  V.  Hull,  560,  567. 
Chapin  v.  Brown,  717. 

V.  Crow,  283,  284. 

V.  First      Universalist      Soc, 
219,  624. 

V.  Hill,  458. 

V.  School    District    No.    Two, 
173,  226. 

V.  Sullivan  R.  Co.,  696. 
Chaplin  v.  Chaplin,  428. 
Chapman  v.  Beardsley,  1288. 

V.  Brewer,  1303,  1304. 

V.  Chapman,  437,  1285. 

V.  Floyd,  972. 

V.  Harney,  175. 

V.  Holmes,  915. 

V.  Kimball,   593. 

V.  Miller,   1174. 

V.  Pingree,  160. 

V.  Price,  495-497. 

V.  Schroeder,  427. 

V.  Sims,  1092. 

V.  Thames  Mfg.  Co.,  659,  673. 
Chappell  V.  New  York  &  N.  H.  R. 
Co.,  705,  874-876. 

V.  Trent,  950. 
Charles  v.  Charles,  496. 

V.  Patch,  882. 
Charless  v.  Rankin,  668,  670,  671. 
Charleston,    C,    &    C.    R.    Co.    v. 

Leech,   394. 
Charleston     Rice     Milling    Co.    v. 

Bennett,  978. 
Charleston  &  S.  Ry.  Co.  v.  John- 
son, 827. 
Charnley  v.  Shawano  Water  Pow- 
er   &    River    Improvement    Co., 
1022. 


Chartiers  Block  Coal  Co.   v.   Mel- 
lon, 745. 
Chase's  Case,  428.  472,  481,  1177. 
Chase  v.  Abbott,  1188. 

V.  Cartright,  221. 

V.  Denny,  1173. 

V.  Gowdy,  641. 

V.  Hazleton,  561,  565,  577. 

V.  Hubbard,  879. 

V.  Ladd,  627,  628. 

V.  McDonald,   1244. 

V.  McDonnell,  535. 

V.  Palmer,  867. 
=  V.  Peck,  1189,  1282.  1285,  1289. 

V.  Silverstone,   667. 

V.  Stockett,  225. 

V.  Swayne,  1126. 

V.  Walker,  763. 

V.  Warner,  1281. 

V.  Weston,  917. 

V.  Wingate,  555. 

V.  Woodbury,  1222,  1223,  1224. 
Chasemore  v.   Richards,   665,  667, 

668,  689,  1030. 
Chastey  v.  Ackland,  687. 
Chatfield  v.  Wilson,  667,  1030. 
Chatham  v.  Bradford,  1082. 
Chauncey  v.  Arnold,  868. 
Chauvin  v.  Wagner,  1044. 
Cheatham  v.  Crews,  407. 

V.  Gower,  337. 

V.  Hatcher,  948. 
Cheek  v.  Aurora,  1006. 

V.  Waldrum,  411,  446,  447. 
Cheeney  v.  Nebraska  &  C.  Stone 

Co.,  587. 
Cheeseborough  v.  Green,  554. 
Cheesebrough  v.  Millara,  1250. 
Cheetham  v.  Hampson,  570. 
Cheever  v.  Fair,  1223. 

v.  Minton,  1098. 

V.  North,  968. 

v.  Pearson,  137,  138. 

V.  Perley,  1255. 
Cheney  v.  O'Brien,  1028. 

V.  Roodhouse,  525. 
Cherry  v.  Heming,  918. 

V.  Mott,  363. 

V.  Stein,  1029. 
Chesapeake    &    P.    Telephone    v. 

Mackenzie,  8]<i,  812,  814. 
Chesley  v.  King,  652,  667. 

V.  Welch,  524. 
Chess'  Appeal.  307,  342. 
Chessman  v.  Whittemore,  880,  881. 


1348 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Chester  Emery  Co.  v.  Lucas,  517. 
Chestnut  v.  Tyson,  9U9. 
Cheswell  v.  Chapman,  719. 
Chetham  v.  Williamson,  747. 
Chenvete  v.  Mason,  416. 
Chew  V.  Brumagen,  1263. 
V.  Buchanan,  1229. 
V.  Commissioners     of     South- 
wark,   487,   488,   490,   491, 
493,  494. 
Y.  Cook,  734. 
V.  Hyman,  1241,  1266. 
V.  Keller,  290,  305.  , 

Chewning  v.  Shumate,  289. 
Chicago  V.  Barbian,  1072. 

V.  Chicago,  R.  L  &  P.  Ry.  Co., 

973,    974. 
V.  Drexel,  976. 
V.  Middlebrooke,  1006. 
V.  Rumsey,  8y4. 
V.  Wasserman,  964. 
V.  Witt,  1079,  1086. 
Chicago,  B.  &  Q.  R.  Co.  v.  West 

Chicago  St.  R.  Co.,  812,  815. 
Chicago  Dock  &  Canal  Co.  v.  Kin- 

zie,  468,  1035. 
Chicago    &    Great   Western    Rail- 
road Land  Co.  v.  Peck,  1263. 
Chicago    Lumber    Co.    v.    Osborn, 

1301. 
Chicago,    R.    L    &    P.    Ry.    Co.    v. 

Sturey,  815. 
Chicago,    T.    &    ivl.    C.   Ry.    Co.    v. 

Titterington,  163. 
Chicago  &  A.  R.  Co.  v.  Goodwin, 

543,  554. 
Chicago   &   N.  W.   Ry.   Co.   v.   Ft. 
Howard,   540. 
V.  Hoag,  1024. 
Chick  V.  Willetts,  1169. 
Child  V.  Baker,  924. 
V.  Baylie,  347. 
V.  Chappell,  717,  730. 
V.  Starr,  891,  892. 
Childers  v.  Bumgarner,  489. 

V.  Childers,  227. 
Childs  V.  Childs,  1242,  1266. 
V.  Clark,  113,  117. 
V.  Hurd,  1201. 
V.  Kansas  City,  St.  J.  &  C.  B. 

R.  Co.,  580. 
V.  McChesney,  1044. 
Chiles  V.  Chalk,  1005. 
V.  Conley,  860. 
V.  Jones,  1007. 
Chilton  V.  Braiden,  1288. 


Chilton  V.  Brooks,  1270. 
China  v.  Southwick,  660. 
Chipman  v.  Paimer,  658. 
Chippewa  Lumber  Co.  v.  Tremper, 

172,  176. 
Chisolm  V.  Chisolm,  510. 
Chiswell  V.  Morris,  482. 
Chivington    v.     Colorado    Springs 

Co.,  927. 
Cholmondeley     v.     Clinton,     1012, 

1198. 
Chorpenning's  Appeal,  241. 
Choteau  v.  Jones,  882. 

V.  Thompson,  1300. 
Chouteau  v.  Riddle,  1012,  1256. 
Christ        Protestant        Episcopal 

Church  V.  Mack,  1261,  1262. 
Christ's  Hospital  v.  Grainger,  362. 
Christian  v.  Cabell,  266. 

V.  Clark,  504. 
Christie  v.  Barker,  794. 
Christmas  v.  Ouver,  306,  1040. 
Christopher    v.    Austin,    130,    786, 
792,  793. 

V.  Christopher,    511,   512,   963, 
1289. 
Christophers  v.  Sparke,  1255. 
Christy  v.  Dyer,  1124. 

V.  Pulliam,  611. 
Chrystie  v.  Phyle,  60. 
Chrysty   v.    Spring   Valley   Water 

Works,  1006. 
Chudleigh's  Case,  347. 
Church  V.  Bull,  453,  455. 

V.  Church,  433,  434,  436. 

V.  Gilman,  929,  930,  935. 

V.  Lavezzelo,  651. 

V.  Meeker,  592,  593. 

V.  Portland,  979,  980. 

V.  Ruland,  1095. 

V.  Seeley,  787. 

V.   Smith,  1294. 

V.  Warren  Mfg.  Co.,  943. 

V.  Well,   698. 
Church  Extension  of  M.  E.  Church 

V.  Smith,  1157. 
Churchill  v.  Morse,  1097. 

V.  Reamer,  491. 

V.  Wells,  1111. 
Cibel  &  Hill's  Case,  792. 
Cihak  V.  Klehr,  709,  711. 
Cincinnati  v.  Brachman,  907. 

V.  Penny,  672. 

V.  Whetstone,  816. 

V.  White,  810,  821,  971,  978. 


TABLE  OF  CASES. 


1349 


[eeferences  are  to  pages.] 


Citizens'    Bank    of    Louisiana    v. 

First  Nat.  Bank,  1048. 
City  Bank  of  Baltimore  v.  Smith, 

188. 
City  Council  of  Augusta  v.  Wal- 
ton, 226. 
Clabaugh  v.  Byerly,  1081. 
Claflin  V.  Boston  &  Albany  R.  Co., 
48,   704,   705,   874-876. 

V.  Carpenter,  529,  531. 

V.  Claflin,    247,    1138. 

V.  Ness,  1112. 
Claiborne  v.  Elkins,  1017. 

V.  Holland,  244. 
Clanton  v.  Estes,  290. 
Clap  V.  Draper,  527,  529. 
Clapp  V.  Galloway,  447. 

V.  Halliday,  1221. 

V.  Ingraham,  644. 

V.  Pawtucket  Sav.  Inst.,  401. 

V.  Stoughton,  411. 

V.  Wilder.  767. 
Clark  V.  Baker,  60,  1041. 

V.  Battorf,  426. 

V.  Burnside,  544. 

V.  Clark,  382,  431,  498. 

V.  Cogge,  714. 

V.  Condit,  1268. 

V.  Cox,  285,  288,  307,  308,  342. 

V.  Debaugh,  713. 

V.  Denton,  623. 

V.  Depew,  1112. 

V.  Devoe,  755,  757. 

V.  Finlon,  1202. 

V.  Fisber,  906. 

V.  French,  1112. 

V.  Fuller,  1087. 

V.  Gilbert,  1013. 

V.  Glos,   1251. 

V.  Harvey,  524. 

V.  Hill,  539. 

V.  Holden,  565. 

V.  Holland,  1085. 

V.  Hornthal,  606. 

V.  Hulsey,  583. 

V.  Hyman,  1184. 

V.  Jones,  180. 

V.  Lindsey,  398,  399. 

V.  McGee,   763. 

V.  McNeal,  1095. 

V.  Martin,  765,  769. 

V.  Merriam,  1311. 

V.  Middlesworth,  616. 

V.  Moore,  1304. 

V.  Mumford,  911. 


Clark  V.  Parker,  393. 

V.  Parr,  913. 

V.  Parsons,  1046. 

V.  Prentice,  1267. 

V.  Reyburn,    1194,    1213,   1257, 
1265. 

V.  Smith,  1206. 

V.  Stipp,  588. 

V.  Swift,  915. 

V.  Thornthal,   616. 

V.  Washington  Ins.  Co.,  1209. 

V.  Wheelock.  141,  143. 
Clarke's  Appeal,  211,  496. 
Clarke  v.  Clarke,  257,  992. 

V.  Courtney,  938. 

V.  Franklin,  258,  264.    . 

V.  Royle,  1289. 

V.  Smith,  314,  323. 
Clarkson  v.  Clarkson.  317. 

V.  Pell,  277. 

V.  Skidmore,  98. 
Clary  v.  Owen,  544. 

V.  Saunders,  471. 
Claunch  v.  Young,  910. 
Claver'ing  v.  Clavering,  563. 
Clawson  v.  Primrose,  1031. 
Clay,  In  re,  622. 
Clay  V.  Chenault,  331. 

V.  Field,  389. 

V.  Hart,  623. 

V.  Mayo,  495. 

V.  Wren,  1201. 
Claycomb  v.  Munger,  915,  917. 
Clayton  v.  Akin,  458. 

V.  Blakey,  87. 

V.  Feig,  585. 
Clearwater  v.  Kose,  45. 
Clemence  v.  Steere,  560,  561. 
Clemens  v.  Luce,  1254. 
Clement  v.  Bank  of  Rutland,  915, 
917. 

V.  Burns,  592,  593. 

V.  Wheeler,   570,   579. 

V.  Youngman,  745,  884. 
Clements  v.  Berry,  1314. 

V.  Collins.  910. 

V.  Lacy,   1128,   1130. 

V.  Pearce,  923. 
Clendenin   v.   Maryland   Construc- 
tion Co.,  976. 
Clepper  v.  Livergood,  493. 
Clere's  Case,  319,  628,  629. 
Clerk  V.  Laurie,  614. 
Cleve  V.  Mazzoni,  178. 
Cleveland,  In  re,  255. 
Cleveland  v.  Obenchain.  895. 


1350 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Cleveland  v.  State  Bank,  619. 
Cleverly  v.  Whitney,  1120. 
Clifford   V.   Atlantic  Cotton   Mills, 
103. 

V.  Burlington,  636. 

V.  Kampfe,  468. 

V.  Koe,  60. 
Clift  V.  Clift,  426,  473,  481,  562. 
Clifton  V.  Montague,  99. 
Clifton  Heignts  Land  Co.  v.  Ran- 
dall, 882. 
Climie  v.  Wood.  547,  550. 
Clinefelter  v.  Hyres,  623. 
Clinton  v.  Myers,  657. 
Clinton  Nat.  Bank  v.  Manwarring, 

1195. 
Cloake  v.  Hooper,  911. 
Clopton  V.  Bolton,  94. 
Close  V.  Burlington,  160. 
Clough  V.  Clough,  919. 
Clowes  V.  Dickinson,  1222,  1223. 
Clun's  Case,  783. 
Clute  V.  Carr,  682. 

V.  Fisher,  598,  891. 
Clyne  v.  Helmes,  99,  104. 
Coakley  v.  Perry,  443. 
Coal  Creek  Min.  Co.  v.  Heck,  876. 

V.  Ross,  1045. 
Coale  V.  Hannibal  &  St.  J.  R.  Co., 

572. 
Coates  V.  Caldwell,  1131. 

V.  Cheever.  426,  473,  561. 

V.  Gerlach,  1146,  1147. 
Coats   V.   Louisville   &   N.   R.   Co., 

619. 
Cobb  V.  Arnold.  125. 

V.  Bennett,  826. 

V.  Biddle,  7'i8. 

V.  Davenport,    596,    601,    824, 
891.  1021,  1025,  1028,  1029. 

V.  Day.  1179. 

V.  Dyer,   1247. 

V.  Hines,  861. 

V.  Lavalle,  1036. 
Coburn  v.  Ames,  591. 

V.  Ellenwood,  823. 

V.  Goodall.   117. 
Cochran  v.  Flint,  537,   542,  544. 

V.  Guild,   904. 

V.  O'Hern,    497. 

V.  Pascault.  912. 

V.  Stewart,  922. 

V.  Ward.  88. 

V.  Utt,  11/6. 
Cocke  V.  Bailey,  425. 
Cockey  v.  Milne,  1082. 


Cockin's  Appeal,  314. 

Cockrell  v.  Proctor,  903. 

Cockrill    V.    Armstrong,    222,    437, 

441,  527. 
Cocks  V.  Manners,  1139. 

V.  Simmons,  398. 
Codes  V.  Foley,  805. 
Codman  v.  Evans,  809,  886,  897. 

V.  Jenkins,  798. 
Cody  V.  Quarterman,  142,  147. 
Coe  V.  Hobby,  853,  854. 

V.  Persons      Unknown,      861, 
1092. 

V.  Wolcottville  Mfg.  Co.,  500. 
Coffin  v.  Lawrence,  823. 

V.  Loring,   1171. 

V.  Parker,  1242. 

V.  Ray,  1316. 

V.  Talman,  1286. 
Cogan  V.  Stephens,  262,  263. 
Coggins'  Appeal,  345,  348,  352,  361. 
Coghill   V.    Kennedy,    952,   953. 
Cogswell  V.  Cogswell,  75. 

V.  Tibbetts,  465. 
Cohea  v.  Hemingway,  399. 

V.  Johnson,  622. 
Cohegan  v.  Leach,  879. 
Cohn  V.  Hoffman,  1244. 

V.  Norton,   91. 

V.  Wausau  Boom  Co.,  598. 
Coil  V.  StarkweaLher,  880. 
Coit  V.  Comstock,  1139. 

V.  Fitch,  1276. 
Coker  v.  Whitlock,  1211. 
Colby  V.  Osgood,  915. 
Cold    Spring    Iron   Works   v.    Tol- 
land, 892. 
Colchester  v.  Roberts,  719,  720. 
Cole's  Case,  117. 

Cole    v.    American   Baptist    Home 
Mission  Soc,  288. 

V.  Bradbury,  689. 

V.  Drew,  809. 

V.  Edgerly,  1226. 

V.  Green,  567. 

V.  Hadley,  717. 

V.  Haynes,  894,  897. 

V.  Hughes,  754,  759,  760. 

V.  Kimball,  916. 

V.  Lake  Co.,  48. 

V.  Pennoyer,  1149. 

V.  Sewell,  356. 

V.  Stewart,  1212. 

V.  Tyler,  1112. 

V.  Van  Riper,  416,  417,  502. 

V.  Wade,  621. 


TABLE  OF  CASES. 


1351 


[KKb'liRENCES    ABE   TO   PAGES.] 


Cole  Mfg.  Co.  V.  Collier,  383. 
Colebeck  v.  Girdlera  Co.,  726. 
Colee  V.  Colee,  92t>. 
Coleman  v.  Chadwick,  672. 

V.  Coleman,  400. 

V.  Manhattan  Beach  Improve- 
ment Co.,  1120. 

V.  San  Rafael  Turnpike  Road 
Co.,  226. 

V.  Smith,  583,  586. 

V.  Walker,  221. 

V.  Whitney,  1190. 

V.  Winch,  1244. 
Coles  V.  Coles,  435. 

V.  Sims,  765. 

V.  Withers,  1256. 
Colgate  V.  Colgate,  456. 
Collamer  v.  Johnson,  1229. 

V.  Langdon.  1196,  1226. 
Collamore   v.   Collamore,    67,    69. 

V.  Gillis.  550. 
Collier's  Will,  333,  334. 
Collier  v.  Cowger,  914. 

V.  Ervin,   1260. 

V.  Gamble,   915. 

V.  Grimesey,  257. 

V.  Jenks,  558. 

V.  Slaughter.  170. 
Collingwood  v.  Pays,  1159. 
Collins  V.  Benbury,  594,  602,  825. 

V.  Carlile,  1186. 

V.  Castle,  767. 

V.  Champ,  255,  260. 

V.  Chartiers   Valley    Gas    Co., 
668. 

V.  Collins,  286.  880. 

V.  Foley,  610. 

V.  Harding,  786. 

V.  Hasbrouck,   114. 

V.  Hopkins,  1270. 

V.  Hoxie,  225. 

V.  Loftus,   221. 

V.  Lynch,  1008. 

V.  Prentice.  714,  732. 

V.  Riggs,  1242. 

V.  Smith,  342. 
Collins    Mfg.    Co.    v.    Marcy,    172, 

681.  765. 
Collner  v.  Greigs,  388. 
Collumb  V.  Read,  388. 
Colman  v.  Goodnow,  1301 . 
Colorado  Coal  &  Iron  Co.  v.  Unit- 
ed States.  845. 
Colquitt  V.  Brown,  1130. 
Colt  V.  Du  Bois,  1311. 

V.  Redfield.  720. 


Coltness   Iron   Co.   v.    Black,   520, 

774. 
Colton  V.  Colton,  222. 

V.  Gorham,   109. 

V.  Leavey,  920. 
Columbet  v.  Packeco,  586. 
Columbia    Bank    v.    Jacobs,    1178, 
1316,   1317. 

V.  Lynch,  763,  765,  766. 

V.  Thacher,  769. 
Columbia   Ins.    Co.   of   Alexandria 

V.   Lawrence,  1208. 
Columbian  Oil   Co.  v.   Blake,   519. 
Columbus    Gas    Co.    v.    Freeland, 

654. 
Columbus  &  W.  Ry.   Co.  v.  With- 

erow,  893. 
Colvin  V.  Warford,  921,  968. 
Colwell  V.  Woods,  1177. 
Colyer  v.  Hyden,  929. 
Combs'  Appeal,  947. 
Combe's  Case,  937. 
Combs  V.  Combs,  331,  332. 

V.  Cooper,   587. 

V.  Goldsworthy,  1256. 

V.  Young,  445. 
Comegys  v.  Jones,  358. 
Comer  v.  Chamberlain,  491,  502. 

V.  Sheehan.  1204,  1205. 
Comfort  V.  Everhardt,  532. 
Commercial  Bank  v.  Cunningham, 

1186. 
Commercial    Bulletin    Co.,    In    re, 

110. 
Commercial     Ins.    Co.    v.     Spank- 

neble,  1208. 
Commissioners  v.  Johnson,  126. 
Commissioners  of  Charitable   Do- 
nations &  Bequests  v.  D.  E.  Clif- 
ford, 362. 
Commissioners  of  Rouse's  Estate 

V.  Directors  of  Poor,  502. 
Commons  v.  Commons,  1279. 
Commonwealth  v.  Alger,  592,  597. 

V.  Chapin,  594,  602,  826. 

V.  Chaplin,  601. 

V.  Charlestown.  591. 

V.  Cole,  1033. 

V.  Duffield.  644. 

V.  Gibson,  1001. 

V.  Hersey,  554. 

V.  Kelly,  1U33. 

V.  Lay,  1130. 

V.  McNaughes,  818. 

V.  Moorehead,  817. 


1352 


TABLE  OF  CASES. 


[BEFEEENCES   ABE  TO  PAGES.] 


Commonwealth  v.  New  York,  L.  E. 
&  W.  R.  Co.,  1051. 

V.  Newbury,  974. 

V.  Pittsburgh,  1230. 

V.  Roxbury,  591,  592,  1038. 

V.  Rush,  971,  979. 

V.  Stauffer,  170,  171. 

V.  Weatuerhead,  82. 

V.  Wilkinson,  820. 
Compton  V.  McMahan,  622,  624. 

V.  Pruitt,  473,  478. 
Comstock  V.  Comstock,  903. 

V.  Hitt,  1217,  1218. 

V.  Michael,  1206. 
Conant  v.  Little,  484. 
Conard  v.  Atlantic  Ins.  Co.,  1305. 
Concord  Bank  v.  Bellis,  1155. 
Concord    Mfg.    Co.    v.    Robertson, 

596,  597. 
Concord  Union  Mut.  Fire  Ins.  Co. 

V.  Woodbury,  1210. 
Condit  V.  Wilson,  1086. 
Condon  v.  Barr,  153. 

V.  Maynard,  1254. 
Condry  v.  Cheshire,  220. 
Conduit  V.  Ross,  753,  754,  758,  759, 

761. 
Cone  V.  Hartford,  812. 
Coney  v.  Laird,  880. 
Congdon  v.  Morgan,  1007. 
Conger  v.  Duryee,  178. 
Congham  v.  King,  120. 
Congleton  v.  Pattison,  118. 
Congregational  Church  v.  Morris, 

1160. 
Congregational  Soc.  of  Halifax  v. 

Stark,  46. 
Congregational  Soc.  &  Church  in 
Newington   v.  Newington,  1010. 
Conklin  v.  Egerton,  622,  624. 

V.  Foster,  1127. 
Conlan  v.  Grace,  919,  928. 
Conn  V.  Conn,  400,  510. 

V.  Manifee,  852. 
Connecticut  Mut.  Life  Ins.  Co.  v. 
Butte,  1198. 

V.  Jones,  1276. 

V.  Talbot,  1227,  1232. 
Conner  v.  Chase,  1180. 

V.  Downer,  489. 

V.  Howe,  1247. 

V.  Shepherd,  427. 

V.  Woodflll,  1024,  1026. 
Connolly  v.  Brantsler,  466. 
Connor  v.  Bradley,  175. 

V.  McMurray,  504. 


Connor  v.  Stanley,  953. 

V.  Sullivan,  1024. 

V.  Whitmore,  1230. 
Conover  v.  Smith,  118,  1286. 

V.  Wright,  482. 
Conrad  v.  Everich,  1307. 

V.  Long,  169. 

V.  Saginaw  Min.  Co.,  548,  550. 
Consolidated    Nat.    Bank    of    San 

Diego  V.  Hayes,  1263. 
Consumers'  Ice  Co.  v.  Buxler,  108. 

V.  Mixer,  95. 
Conway  v.  Alexander,  1181-1183. 

V.  Starkweather,  152. 
Conyers  v.   Scott,  1026. 
Cooch  V.  Goodman,  918. 
Coock  V.  Gerry,  1169. 
Coogan  V.  Parker,  136. 
Coogier  v.  Rogers,  1120. 
Coogler  V.  Rogers,  1009,  1045,  1120. 
Cook  V.  Brightly,  782. 

V.  Brown,  930,  933. 

V.  Champlain  Transp.  Co.,  572. 

V.  Cook,  262,  436,  484. 

V.  Dillon,   467,   1309. 

V.  Fisk,  474. 

V.  Gammon,  1028. 

V.  Guerra,  1204. 

V.  McClure,  1035. 

V.  Norton,  150. 

V.  Pridgen,  681. 

V.  Stearns,  678,   680. 

V.  Walker,  440. 

V.  Walling,  417. 

V.  Webb,  406,  472. 
Cooke  V.  Avery,  1307. 

V.  Bremond,  384,  385. 

V.  Cooper,  1200. 

V.  Crawford,  621,  624. 

V.  Philips,  438. 
Cookes  V.  Culbertson,  1256. 
Cool  V.  Peters  Box  &  Lumber  Co., 

683. 
Cooley  V.  Scarlett,  221. 
Coolidge  V.  Learned.  1020,  1021. 

V.  Williams,  826. 
Coombs  V.  Jordan,  1305. 
Coon  V.  Smith,  584. 
Cooney  v.  Hayes,  106. 
Coonradt  v.  Hill,  1029. 
Cooper  V.  Adams,  140. 

V.  Arnet,  1133. 

V.  Bloodgood,  910. 

V.  Cooper.  240,  314,  382. 

V.  Davis,  1211,  1213. 


TABLE  OF  CASES. 


1  ^  -  -• 


[beferences  are  to  pages.] 


Cooper      V.      First      Presbyterian 
Church,  698. 

V.  Franklin,  211. 

V.  Holmes,   1320. 

V.  Louanstein,  719. 

V.  Macdonald,  492,  495. 

V.  Merritt,  1295. 

V.  Randall,  652. 

V.  Reynolds,  1315. 

V.  Skeel,  230. 

V.  Smith,  824. 

V.  Woolfit,  526. 
Coot  V.  Berty,  465. 
Coots  V.  Yewell,  292,  299. 
Cope  V.  Grant,  897. 

V.  Wheeler,  1273. 
Copeland   v.    McAdory,    905,    908. 

V.  Manton,  1298. 
Copp  V.  Lamb,  823. 
Coppp.ge  V.  Alexander,  170. 
Copper  V.  Dolvin,  515. 
Copperthwait  v.  Dummei',  1276. 
Corbet's  Case,  347. 
Corbett  v.  Hill,  554. 

V.  Laurens,  75. 

V.  Norcross,  886,  924. 

V.  Spencer,  1149. 

V.  Waterman,  1219. 

V.  Wrenn,  904,  914. 
Corbin  v.  Healy,  69,  871. 
Corbit  V.  Smith,  1180. 
Corby  v.  McSpadden,  138. 
Cordova  v.  Hood,  1288,  1290-1292. 
Corey  v.  Bishop,  556. 

V.  Schuster,  1125. 

V.  Smalley,   1083. 
Corinth  v.  Emery,  381,  383. 
Corlies  v.  Howland,  1287. 

V.  Little,  623. 

V.  Vannote,    922. 
Cormody  v.  Chicago  &  H.  R.  Co., 

1013. 
Cornelius  v.  Giberson,  1007. 

V.  Ivins,  181. 

V.  Kessel,  845. 
Cornell  v.  Barney,  1300. 

V.  Jackson,  912. 

V.  Lamb,  800. 

V.  Todd,  872. 
Corning  v.  Gould,  739,  1021. 

V.  Troy  Iron  &  Nail  Factory, 
586,  673. 
Cornish  v.  Frees,  1127. 

V.  Stubbs,  143. 
Cornwale  v.  Sullivan  R.  Co.,  590. 
Cornwell  v.  Wulff,  331. 


Cornwell   Mfg.   Co.   v.   Swift,   688, 

1025. 
Corpman  v.  Baccastow,  1178. 
Corporation    for    Relief    of    Poor, 
Distressed    Presbyterian    Minis- 
ters V.  Wallace,  1244. 
Corr's  Appeal,  230,  232,  233. 
Corrigan  v.  Chicago,  135. 

V.  Trenton     Delaware      Falls 
Co.,  921,  922. 
Corse  V.  Chapman,  290,  292,  615. 
Cortleyen  v.  Hathaway,  1202. 

V.  Van  Brundt,  810,  826. 
Corwin  v.  Corwin.  860. 

V.  New  York  &  E.  R.  Co.,  590. 
Cosby  V.  Buchanan,  1182. 
Cosgriff  V.  Dewey,  580. 

V.  Foss,  396,  397. 
Costello  V.  Grand  Trunk  Ry.  Co., 

499. 
Coster  V.  Bank  of  Georgia,  1081. 

V.  Clarke,  437. 
Cote's  Appeal,  438. 
Gotten  V.  Willoughby,  1171,  1174. 
Cotterell  v.  Long,  1282. 

V.  Purchase,    1179. 
Cotting  V.  De  Sartige^.  630. 
Cottingham  v.  Springer,  119^. 
Cottle  V.  Young,  895. 
Cotton's  Trustees,  In  re,  259. 
Cotton  V.  Carlisle,  1194,  1196. 

V.  Heath,  339. 

V.  Wood,  230. 
Cottrell  V.  Adams,  1227. 
Couch  V.  Eastham.  1280. 
Coudert  v.  Cohn,  88. 

V.  Sayre,  763,  769,  770. 
Coughanour  v.  Hoffman's  Estate, 

507. 
Coughlin  V.  Barker,  767.  769. 

V.  Seagb,  248. 
Coulter  V.  Holland,  474. 

V.  Norton,  128. 

V.  Robertson,  248. 
Coulthard  v.  Davis,  1036. 

V.  Stevens,  1034,  1037. 
Countryman  v.  Deck,  758. 
Coupe  V.  Piatt.  105. 
Coursey  v.  Davis,  59. 
Courtail  v.  Thomas.  853. 
Courter  v.  Stagg,  171. 
Courtnay  v.  Parker.  1310. 
Coutts  V.  Walker,  1309. 
Cover  V.  Manaway,  927. 
Covington  v.  Geyler,  671. 

V.  McNickle.  in06. 


1354 


TABLE  OP  CASES. 


[references  are  to  pages.] 


Cowan  V.  Allen,  455. 

V.  Bradford  Iron  Co.,  520. 

V.  Lindsay,  480. 

V.  Withrow,  1087. 
Coward  v.  Culver,  1314. 
Cowden's  Estate,  1223. 
Cowdrey  v.  Cowdrey,  510. 

V.  Hitchcock,  510. 
Cowell    V.    Colorado    Springs    Co., 
172.  181,  353,  1136. 

V.  Hicks,  277,  313. 

V.  Lumley,  102,  136. 

V.  Thayer,  722. 
Cowen  V.  Radford  Iron  Co..  138. 

V.  Sunderland,  100,  103. 
Cowles  V.  Kidder,  660,  684. 

V.  Marble,  1238,  1242. 
Cowling  V.  Higginson,  720,  723. 
Cowper  V.  Fletcher.  392. 
Cox  V.  Arnold,  1035,  1038. 

V.  Boyce,  494. 

V.  Clough,  1024. 

V.  Couch,  888. 

V.  Cox,  265. 

V.  Forrest,  737,  1024,  1025. 

V.  Freedley,  894. 

V.  Garst,  435. 

V.  Gulick,  1160. 

V.  Holcomb,  926. 

V.  Jagger,  470. 

V.  James,  717. 

V.  Louisville,  894. 

V.  Louisville,   N.    A.    &    C.   R. 
Co..  812. 

V.  McGowan,  1150. 

V.  McMullin,  407. 

V.  Milner,  1086. 

V.  Wells,    452,   866. 

V.  Wilder.  453. 

V.  Williams.  240. 
Coyle  V.  Davis,  1180. 
Cozens  v.  Stevenson,  74U. 
Cozzens  v.  Farnan,  1004. 
Crabtree  v.  Baker,  665. 
Craddock    v.     Riddesbarger,     528, 

803. 
Cradock  v.  Scottish  Provident  In- 
stitution. 1282. 
Craft  V.  Russell,  1289. 

V.  Wilcox,  382. 
Crafts  V.  Crafts,  396. 
Craig      V.       First       Presbvterian 
Church,   699. 

v.  Leslie.    254.    256,    259,    262, 
263. 


Craig  V.   Rochester   City  &   B.   R. 
Co.,  812. 

V.  Rowland,  292,  293,  300. 

V.  Sebrell,  1307. 

V.  Summers,  114. 

V.  Van  Bebber,  1148-1151. 

V.  Warner,  297. 

V.  Watson,  525. 
Craige  v.  Morris,  471. 
Grain  v.  McGoon,  1236,  1238. 

v.  Paine,  1256. 

V.  Wright,  928. 
Cralle  v.   Cralle,  498. 
Cram  v.  Cotrell,  1265. 
Cramer  v.  Lepper,  1221. 
Cramford  v.   Mobile  &  G.  R.  Co., 

821. 
Crampton  v.  Prince,  1287. 
Crane  v.  March,  1195,  1227. 

V.  Palmer,  434. 

V.  Reeder,  1119. 

V.  Salmon,  861. 

V.  Turner,  1230. 

V.  Waggoner,  392,  1124. 

V.  Winsor,  662. 
Cranson  v.  Cranson,  444. 
Cranston  v.  Crane,  1271,  1273. 
Crapo  V.  Cameron,  1007. 
Crary  v.  Campbell,  394. 

V.  Goodman,  1014,  1119. 
Crater  v.  McCormick,  760. 
Cravens  v.  Pettit,  883. 

V.  Rossiter,    936. 
Crawford  v.  Chicago,  B.  &   Q.   R. 
Co.,  1091. 

V.  Edwards,  1117,  1221. 

V.  Jones,  122,   798. 

V.  Langmaid,  643. 

V.  Manson,   232. 

V.  Scovell.  1155. 

V.  Simon.  1239. 

V.  Witherbee,  117,  753,  755. 
Crawshaw  v.  Sumner,  727. 
Creath  v.  Creath,  506. 

V.  Dale,  1133. 
Creech  v.  Crockett,  143. 
Creecy  v.  Pearce,  435. 
Creel  v.  Kirkham,  534. 
Creesy  v.  Willis,  1246. 
Cregier,  In  re,  439,  440.  494. 
Creigh  v.  Henson,  1012. 
Cresap  v.  Kemble,  582. 
Cresson  v.  Ferree,  647. 
Crest  V.  Jack,  396. 
Creswell  v.  Slack,  1321. 
Crenling  v.  De  Hare,  782. 


TABLE  OF  CASES. 


1355 


[UKFERENCES    ARE   TO   PAGES.] 


Cribb  V.  Rogers,  321. 
Cribben  v.  Deal,  86s. 
Crilly  V.  Sheriff,  1126. 
Crippen  v.  Chappel.  1248.  1249. 

V.  Morse,  393. 
Cripps  V.  Wolcott,  337. 
Crisfield  v.  Storr,  293.  297. 
Crispen  v.  Hannavan,  1000-1002. 
Criswell  v.  Grumbling,  72. 
Critchfield  v.  Critchfield,  930. 
Crittenden  v.  Johnson,  438. 
Crocker  v.  Cotting.  897. 

V.  Mann,  800. 

V.  Old  South  Society,  179. 

V.  Tiffany.  394. 
Crockett  v.  Crockett,  578,  579. 

V.  Robinson.  314,  315. 
Crofts  V.  Middleton,  342. 
Crommelin  v.  Thiess,  86,  88,  113, 

153,  156. 
Cromwell    v.    Brooklyn    Fire    Ins. 
Co.,  1208. 

V.  Tate,  922. 
Cronin  v.  Gore.  587. 
Cronise  v.  Hardt,  262,  263. 
Crook  V.  Vandevoore,  395. 
Crooker  v.  Frazier,  1196. 

V.  Holmes,  1256. 
Crooks  V.  Crooks,  1146,  1147. 
Cropley  v.  Cooper,  258,  259. 
Crosbie  v.  MacDonal,  970. 
Crosby  v.  Bessey,  688,  1029. 

V.  Bradbury,  897. 

V.  Farmers'  Bank  of  Andrew 
County,    1223,   1249. 

V.  Loop,  780,  781,  785. 

V.  Roub,  1227. 

V.  Wadsworth,  583. 
Crosdale  v.  Lanigan,   679.   682. 
Crosgrove  v.  Crosgrove.  1158. 
Crosland  v.  Pottsville.  665. 

V.  Rogers.  712. 
Cross  V.  Allen.  1255. 

V.  Carson,  164.  180. 

V.  Fombey,   1275. 

V.  Lewis,   1027. 

V.  Marston,  537. 

V.  Unitea  States,  797. 
Crosse  v.  Young.  910. 
Crossing  v.  Scudamore,  863. 
C'rossley  v.  Lightowler,  722,  1029. 
Grossman  v.  Field,  330. 
Crouch  V.  Fowle.  96.  97. 

V.  Puryear,   484. 
Grouse  v.  Murphy,  1307. 
Crout  V.  Santer.  1135. 


Crow  V.  Kightlinger,  498. 

V.  Whitworth,  1125. 
Growder  v.  Stone,  336. 
Crowe  V.  Wilson,  569. 
Crowell  V.  Hospital  of  St.  Barna- 
bas, 1220,  1221. 

V.  Packard,  904. 
Crowley  v.  Hicks,  623. 

V.  Vaughan,  1120. 
Croxall   V.    Shererd.    67,    215,    283, 

312. 
Crozier's  Appeal,  457. 
Crozier  v.  Hoyt,  633. 
Cruger  v.  McLaury,  184. 
Gruikshanks  v.  Home  for  Friend- 
less, 956. 
Cruize  v.  Billmire,  446,  466. 
Crum  V.  Bliss,  954. 

V.  Sawyer,  1135. 
Crumley  v.  Deake,  492. 
Crump  V.  Lambert,  652,  654. 
Cruse  V.  McKee,  634,  637. 
Crusoe  v.  Bugby,  107. 
Crutcher  v.  Muir,  1180. 
Cubbins  v.  Ayres,  550. 
Gubitt  V.  Porter,  691,  692,  727. 
Gudworth  v.  Bostwick,  1298. 

V.  Scott,  1174. 
Gueman  v.  Broadnax,  626. 
Cuff  V.  Hall,  631. 
Cuffee  V.  Milk,  58. 
Culberson  v.  Culberson.  461. 
Gulbertson  v.  Cox,  1133. 

V.  Duncan,  586. 
Culbreth  v.  Smith,  338,  339. 
GuUum  V.  Branch  Bank  at  Mobile, 

1188. 
Gulp  V.  Price,  232. 
Culver  V.  Blwell,  1298. 

V.  Rhodes,  390. 

V.  Rodgers,  582. 
Cumberbach  v.  Perryn,  288. 
Cumberland    v.    Codrington,    1245, 

1246. 
Gumming  v.  Gumming.  1222,  1223. 
Gummings  v.  Boyd.  1094. 

V.  Dearborn,  862. 

V.  Jackson,  1282. 

V.  Long.  1133. 

V.  Reid  Memorial  Church,  363. 

V.  St.  Louis,  979. 

V.  Stearns,  282,  307. 
Cummins  v.  Busby.  505. 

V.  Kennedy,  911,  912. 
Cxunston  v.  Bartlett,  631. 
Cunningham's  Estate.  455. 


1356 


TABLE  OF  CASES. 


[references    ABE   TO   PAGES.] 


Cunningham  v.  Cassidy,  1260. 

V.  HenaricKs,  973. 

V.  Holton,  140. 

V.  Knight,  425. 

V.  Macon  &  B.  R.  Co.,  1275. 

V.  Moody,  289. 

V.  Parker,  163. 

V.  Pattee,  395. 

V.  San  Saba  County,  1033. 

V.  Webb,  883,  897. 
Cupit  V.   Jackson,   605. 
Cureton  v.  Taylor,  947. 
Curran  v.  Louisville,  7  36. 
Currey,  In  re,  1138. 
Gurrie  v.  Donaid,  931. 
Currier  v.  Cummings,  1300. 

V.  Gale,  1003,  1237. 

V.  Perley,  148. 

V.  Woodward,  1125. 
Curry  v.  Bott,  499. 
Curteis  v.  Wormald,  263. 
Curtis  V.  Aaronson,  889. 

V.  Galvin,  141,  143. 

V.  Gardner,   705,   8T3. 

V.  La  Grande   Hydi'aulic   Wa- 
ter Co.,  1012. 

V.  Lukin,  364. 

V.  Lyman,  1082. 

V.  Mundy,  1086. 

V.  Price,  311. 

V.  Root,  1171,  1314. 

V.  Smith,  218. 

V.  Spitty,  786,  796. 
Curtiss  V.  Ayrault,   664,    665,   667, 
689.  707,  710. 

V.  Hoyt,  542. 

V.  Livingston,  577. 
Curtner  v.  United  States,  835. 
Gushing  v.  Adams,  731. 

V.  Blake,  239,  490,  492,  497. 

V.  Edwards,  1308. 

V.  Hathaway,  897. 

V.  Hurd,  1195. 

V.  Spalding,  1136. 
Gushman  v.  Blanchard,  900,  912. 

V.  Smith,   1072. 
Curtis    V.    La    Grande    Hydraulic 

Water  Co..   681. 
Guthbert  v.  Chauvet,  247,  1138. 

V.  Kuhn,   785. 
Cutler  V.  Ammon,  1313. 

V.  Clementson,  1263. 

V.  Currier,  393. 

V.  Smith,  680. 
Cutter  V.  Butler,  415. 
Cutting  V.  Derby,  779. 


Cutts  V.  York  Mfg.  Co.,  1171. 
Cyr  V.  Madore,  973. 

D. 

Dabney  v.  Bailey,  457. 
Dailey  v.  Burke,  1318. 
Daily  v.   State,  809. 
Dakin  v.  Savage,  248.\ 

V.  Williams,  177. 
Dakota  Hot  Springs  Co.  v.  Young, 

799. 
Dalay  v.  Savage.  104. 
Dale  V.  Bartley,  305. 

V.  McEvers,  1321. 

V.  Hunneman,  844. 
Dall  V.  Brown,  394,  823. 
Dalton  V.  Angus,  690,  1032. 

V.  Jones,   568. 

V.  Smith,  1264. 
Daly  V.  James,  631. 

V.  Maitland,  1276. 

V.  Willis,  451,  452. 

V.  Wise,  99. 
Damainville  v.  Mann,  796. 
Dame  v.  Dame,  542,  554. 
Dammert  v.  Osborn,  250. 
Damren  v.  American  Light  &  Pow- 
er Co.,  780. 
Dana  v.  Murray,  301. 

v.  Valentine,     674,     687,     736, 
1026,  1029. 
Dance  v.  Dance,  1289. 
Dand  v.  Kingscote,  741. 

V.  Coker,  1202.  1203. 
Daniel  v.  Felt,  629. 

V.  Gracie,  520,  801. 

V.  Leitch,  435. 

V.  Martenby,  315. 

V.  Wood,  699,  730. 
Daniels  v.  Eldredge,  307. 

V.  People,  1033. 

V.  Pond,  140,  556. 
Darcey  v.  Askwith,  560. 
Darcus  v.   Crump, 
D'Arcy  v.  Blake,  432. 

V.  Miller,  694,  696. 
Dare  v.  Heathcote,  723. 
Dark   v.    Johnston,    519,    682,    684, 

747. 
Darley  Main  Gollierv  Co.  v.  Mit- 
chell, 669. 
Darrington  v.  Myers,  1121. 
Darst  V.  Bates,  1188. 

V.  Enlow,  586. 
Dashwood  v.  Magniac,  563. 


TABLE  OF  CASES. 


1357 


[references    ABE   TO   PAGES.] 


Daubenspeck  v.  Piatt,  1089. 
Daudt  V.  Musick,  510. 
Dauenhauer   v.    Devine,    692,    726, 

728. 
Daugherty  v.  Daugherty,  455. 
Davenport  v.  Kirkland,  257,  258. 

V.  Lacon,  1316. 

V.  Lamson,  719. 

V.  Magoon,  567. 

V.  Reg.,  178. 

V.  Shants.  542-544. 

V.  Sleight,  868. 

V.  Durrant,  1272. 
Davidson  v.  i3ates,  290. 

V.  Beard.  1319. 

V.  Cox,  915. 

V.  Dwyer,  1046. 

V.  Ellmaker,  125. 

V.  Fischer,  99,  102. 

V.  Frew,  448. 

V.  Heydom,  373. 

V.  Koehler,  283. 

V.  Myers,  1306. 

V.  Reed,  972. 

V.  Young,   1150,  1151. 
Davies  v.  Davies.  571. 

V.  Haubner,   818. 

V.  Otty,  235. 

V.  Speea,  299,  319. 
Davis  V.  Bawcum,  306. 

V.  Bechstein,    1231. 

v.  Betz,  1299. 

V.  Brockleoank,   141,   143. 

V.  Burton,  923. 

V.  Charles    River    Branch    R. 
Co.,  220. 

V.  Christian,  625. 

V.  Clark,  565,  932. 

V.  Compton,  385. 

V.  Connecticut  Mut.  Life  Ins. 
Co.,  1261. 

V.  Davis,  336,  387,  931,  1048. 

V.  Day,  1131. 

V.  Demming,  1189. 

V.  Dickson,  1012. 

V.  Dudley.  1147,   1150,  1151. 

V.  Eastham,  545. 

V.  Emery,  530,  545. 

V.  Eyton.  52o. 

V.  Freeland's  Lessee,  844. 

V.  Garrett,  937. 

V.  George,  99. 

V.  Getcheil,  657. 

V.  Gilliam,  564,  565. 

V.  Gray,  167,  187.  188. 

V.  Green.  433. 


Davis  V.  Gurley,  744. 

V.  Handy,  883. 

V.  Hardy,  1266. 

V.  Hayden,  69. 

V.  Howcott,  632. 

V.  Hulett,  1217. 

V.  Humphrey,  1301. 

V.  Jenkins,  451. 

V.  Judd,  923. 

V.  Kenneay,  1085. 

V.  Logan,  441. 

V.  Lyman,  915. 

V.  McArthur,  1002. 

V.  Mason,  487-492. 

V.  Maynard,    1188. 

V.  Messenger,    1314. 

V.  Milligan,  1172. 

V.  Monroe,  1083. 

V.  Moss,  180. 

V.  Murphy,  142,  143. 

V.  Nash,  140. 

V.  Norris,  1287. 

V.  Owenby,  1319. 

V.  Pacific  Power  Co.,  105. 

V.  Smith,  909. 

V.  Soledge,  803. 

V.  Spaukling,  689. 

V.  Speed,  299,  319. 

V.  Stambaugh,  235. 

V.  Stroud,  1016. 

V.  Thompson,  87. 

V.  Townsend,  447. 

V.  Vansands,  1321. 

V.  Waddington,  138. 

V.  Walker,  479,  480. 

V.  Weibhold,  844. 

V.  Wetherell,  468,  1241. 

V.  Whitaker,  1082. 

V.  Williams,  355. 

V.  Winn,  1206. 
Davis  Sewing  Mach.  Co.  v.  Whit- 
ney, 1130. 
Davison  v.  Gent,  857. 

V.  Whittlesey,  470,  471. 
Davock  V.  Nealon,  1001. 
Davol  V.  Howland,  464. 
Davone  v.  Fanning,  616. 
Dawes  v.  Hawkins,  817. 
Dawson,  In  re,  352. 
Dawson  v.  Coftman,  564. 

V.  Drake,  1202. 

V.  Edwards,  500. 

V.  Hayden.  243. 

V.  Lamb,  856. 

V.  Midland  Ry.  Co.,  590. 

V.  Qninnerly,  312. 


1358 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Dawson  v.   St.   Paul   F.  &  M.   Ins. 
Co.,  717,  724. 

V.  Shirley,  1145. 
Day  V.  Adams,  508. 

V.  Caton,   693. 

V.  Clark,  1096. 

V.  Cochran,  490,  499,  1011. 

V.  Cooley,  1112. 

V.  Day,  594. 

V.  Griffith,  936. 

V.  Howard,  390. 

V.  Solomon,  422. 

V.  Stevens,  535. 

V.  Walden,  732,  736,  738. 

V.  West,  464. 
Dayton  v.  Donart,  508,  509,  512. 
Deacons  v.  Doyle,  906. 
Deaderick  v.  Cantrell,  241. 
Dean  v.  Bailey,  416. 

V.  Comstock,  14U. 

V.  Long,  59,  60,  213. 

V.  Phillips,  467. 

V.  Shelly,  858. 

V.  Walker,  1217-1221. 
Deane  v.  Caldwell,  132. 
Dearborn  v.  Dearborn,  1201. 

V.  Taylor,  450. 
Dearnaley  v.  Chase,  1230. 
De  Arnaz  v.  Bscandon,  927. 
Deas  V.  Horry,  273. 
Deaton  v.  Polk  County,  809. 

V.  Taylor,  178. 
De  Blane  v.  Lynch,  383,  384. 
Deboe  v.  Lowen,  64. 
Debow  V.  Colfax,  524. 
De  Camp  v.  Crane,  493. 

V.  Dobbins,   1158. 
Deck  V.  Tabler,  230-232. 
Decker  v.  Boice,  1232,  1234. 

V.  Decker,  1281. 

V.  Evansville,  S.  &  N.  Ry.  Co., 
814,  815. 

V.  Livingston, '411. 
Deem  v.  Milliken,  1161. 
Deere  v.  Chapman,  1127. 
Deerfield  v.  Arms,  594,  595,  1037. 
Deery  v.  Cray,  886. 
Deese  v.  Myers,  1129. 
De  Falbe,  In  re,  549,  551. 
Defiance    Water    Co.    v.    Olinger, 

666. 
Deford  v.  Deford,  354,  955. 
De  Ford  v.  Painter,  1125. 
De  France  v.  Johnson,  420,  466. 
Defreese  v.  LaKe,  306. 
De  Frieze  v.  Quint,  1008. 


De  Garca  v.  Galvan,  384. 
Degman  v.  Degman,  637,  638. 
Degory  v.  Roe,  935. 
Degraffenried  v.  Scruggs,  539. 
De  Gray  v.  Monmouth  Beach  Club 

House  Co.,  764,  767. 
De  Grey  v.  Richardson,  487,  494. 
De   Haro    v.    United    States,    680, 

684. 
Dehoney  v.  Bell,  512. 
Dehority  v.  Wright,  916. 
Dei  V.  Habel,  509,  510. 
De  Labeaga's  Estate,  In  re,  961. 
Delafield  v.  Barlow,  257. 

V.  Parish.  957. 
De  Lahoussaye  v.  Judice,  664. 
Delaire  v.  Keenan.  1284. 
De  Lancey  v.  Ganong,  134. 

V.  Stearns,  1183,  1184. 
Delaney  v.  ErricKson,  588. 

V.  Root,  534. 
Delano  v.  Bennett,  1230. 

V.  Montague,  86,  151. 
Delaplaine    v.    Chicago    &    N.    W. 
Ry.  Co.,  596,  597. 

v.  Crenshaw,   825. 

V.  Hitchcock,  1195. 
De  Lassus  v.  Gatewood,  308. 
Delavergne  v.  Norris,  914. 
De  la  Warr  v.  Miles,  744. 
Delaware    Railroad    Construction 
Co.  V.   Davenport  &   St.  P.   Rv. 
Co.,   1302. 
Delaware  River  Steamboat  Co.  v. 
Burlington    &    B.    Steam    Ferry 
Co.,  828. 
De  Leon  v.  Higners,  1175,  1176. 
Delespine  v.  Campbell,  1264. 
Delhi  V.  Youmaus,  667,  1030. 
Dell  V.  Gardner,  798. 
Dellett  V.  Kemble,  1046. 
De  Logny  v.  Mercer,  753. 
De  Long  v.  Baldwin,  584. 
Demarest  v.  Hardham,  653. 

V.  Willard,  113,  117,  781,   796. 

V.  Wynkoop.  1003,  1004,  1240. 
Demars  v.  Koehler,  906. 
De  Martin  v.  Phelan,  1216. 
Demill  v.  Reid,  293,  300.  326. 
Doming  v.  Bullitt,  923. 

V.  Miles,  497,  501. 
De  Mott  V.  Hagerman,  525. 
Demuth  v.  Anweg,  1026. 

V.  Old  Town  Bank,  1256. 
Den  V.  Adams,  15u. 

V.  Allen,  1036. 


TABLE  OP  CASES. 


135'> 


[references  are  to  pages.] 


Den  V.  Boyd,  821. 

V.  Brown,  1251. 

V.  Cox,  1179. 

V.  Crawford,  300. 

V.  Demarest,  306,  489. 

V.  Dimon,  1194,  1197. 

V.  Drake,  148. 

V.  Farlee,  930. 

V.  Flogg,  59. 

V.  Frew,  448. 

V.  Geiger,  1120. 

V.  Hampton,  860. 

V.  Hanks,  878. 

V.  Hunt,  1321. 

V.  Mills,  1018. 

V.  Quinby,  495. 

V.  Richardson,  873. 

V.  Roake,  627,  629,  630. 

V.  Snowhill,   613. 

V.  Van  Houten,  889. 

V.  Walker,  497,  500. 

V.  Young,  606,  613. 
Denby  v.  Mellgrew,  1197. 
Dendy  v.  Waite,  1272. 
Deneale  v.  Morgan,  623. 
Denham  v.  Holeman,  1007. 
De  Nicholls  v.  Saunders,  1204. 
Denis  v.  Gayle,  1133. 
Denman  v.  Prince,  753,  754,  757. 
Denn  v.  Slater,  59. 
Dennett  v.  Codman,  1240. 

V.  Dennett,    64,    276,   295,   311, 
1153. 

V.  Hopkinson,  525,  526. 
Denning  v.  Butcher,  953. 
Dennis  v.  Wilson,  687. 
Dennison  v.  Foster,  394,  395. 

V.  Goehring,  223,  237. 
Dent  V.  Emmeger,  823. 
Denton  v.  Clarke,  623. 

V.  Denton,  213. 

V.  Jackson,  822. 

V.  Leddell,  711. 
Dentzell  v.  Waldie,  939. 
Denver  v.  Denver  &  S.  F.  Ry.  Co., 

976,  978. 
Denzler  v.  O'Keefe,  1251,  1312. 
De    Peyster    v.    Gould,    229,    230, 
1317. 

V.  Michael,  1136. 
Deraismes  v.  Deraismes,  76. 
Dermott  v.  Wallach,  179,  180. 
Derr  v.  Dellinger,  265. 
Derrick  v.  Brown,  862. 
Derry  Bank  v.  Webster,  931,  936. 
Derush  v.  Brown,  437. 


Deseret   Salt   Co.    v.   Tarpey,   843, 

844. 
Deshong  v.  Deshong,  406. 
De  Silver's  Estate,  300,  1154. 
Desloge  v.  Pearce,  746. 
Despard  v.  Churchill,  16. 

v.  Walbridge,  154,  1179. 
Despatch    Line    v.    Bellamy    Mfg. 

Co.,  539. 
Detroit    Sav.    Bank    v.    Truesdail, 

1250. 
Detweiler's  Appeal,  1323. 
Detwiller  v.  Hartman,  1139. 
Deuster  v.  McCamus,  1225. 
De  Vaughn  v.  Hutchinson,  314. 

V.  McLeroy,  259,  260. 
Devaynes  v.  Robinson,  618. 
De  Veney  v.  Gallagher,  582. 
Devereaux  v.  Fairbanks,  1258. 
Devereux   v.    McMahon,    919,    922, 

924. 
Deville  v.  Widoe.  1125. 
Devin  v.  Hendershott,  1274. 
Devinney  v.  Reynolds,  938. 
Devlin  v.  Collier,  1230. 
Devonshire  v.  Eglin,  682. 
Devore  v.  Lunderland,  904. 
Dewey  v.  Allgire,  1154,  1155. 

V.  Brown,   402. 

V.  Brownell,  1206. 

V.  Depuy,  782. 

V.  Lambier,  401. 

V.  Sugg,  1307. 

V.  Williams,  183. 
Dewitt  V.  Pierson,  126,  129. 
De  Witt  V.  San  Francisco,  373. 
De  Wolf  V.  Johnson,  1221. 

V.  Lawson,  258. 

V.  Murphy,  467,  1316. 

V.  Sprague  Mfg.  Co.,  1274. 
Dexter  v.  Arnold,  1214,  1240. 

V.  Beard,  753,  755. 

V.  Hall,  1154. 

v.  Manley,  96,  98. 

V.  Tree,  1026. 
Dexter  Lime  Rock  Co.  v.  Dexter, 

393. 
Dey  V.  Prentice,  753,  758. 
Dial  V.  Reynolds,  1267. 
Dibble  v.  Rogers,  585. 
Dibrell  v.  Carlisle,  242. 
Dick  v.  Doughten,  444,  446. 

V.  Harby,  620,  625,  628. 
Dicken  v.  Liverpool  Salt  &  Coal 

Co.,  1033. 
Diokerson  v.  Colgrove,  1045. 


1360 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Dickey  v.  Gibson,  508. 

V.  Kansas  City  &  T.  R.  T.  Co., 
757. 

V.  Thompson,  1223. 

V.  Wilkins,  525. 
Dickie  v.  Carter,  947. 
Dickinson  v.  Baltimore,  577. 

V.  Davis,  232. 

V.  Grand  Junction  Canal,  668. 

V.  Hoo"ies,  752. 

V.  Jones,  577. 

V.  McLane,  504. 

V.  Williams,  398. 
Dickson  v.  Dickson,  420. 

V.  Field,  1279. 

V.  Satterfield,  313. 
Diedrich   v.    Northwestern    Union 

Ry.  Co.,  596,  598. 
Diehl  V.  Emig,  929,  931. 
Diffenderfer   v.    St.    Louis    Public 

Schools,  354. 
Diggs  V.  Brown,  387. 
Dike  V.  Ricks,  633. 
Dikeman  v.  Taylor,  883. 
Dill  V.  School  Board  of  Camden, 

717,  736,  737. 
Dillahunty  v.  Little  Rock  &  Fort 

S.  Ry.  Co.,  911. 
Dillard  v.  Dillard,  624. 
Diller  v.  Roberts,  801. 
Dillman  v.  Will  County  Nat.  Bank, 

447. 
Dills  V.  Hubbard,  1018. 

V.  Stobie,  857. 
Dilworth  v.  Fee,  156. 

V.  Rice,  622. 
Dimmich  v.  Lockwood,  914. 
Dimon  v.  Dimon,  1194,  1197. 
Dingley  v.  Bank  of  Ventura,  1292, 
1293. 

V.  Buffum,  140. 
Dingman  v.  Dingman,  448. 
Directors   of   Poor.   Blair   County, 

V.  Royer,  448. 
Disher  v.  Disher.  76,  564,  577.  578. 
Distilled  Spirits.  1087,  1088. 
Distrunk  v.  Ware,  1280. 
Ditson  V.  Ditson,  509. 
Diver  v.  Diver,  382. 
Dixon  v.  Clayville,  1228,  1229. 

V.  Harrison.  788. 

v.  Niccolls,  778.  780. 

V.  White,  690. 
Doane  v.  Badger,  725. 

V.  Broad   Street  Ass'n,   883. 

V.  Doane.  510.  1127. 


Doane  v.  Hadlock,  960. 

V.  Willcutt,  1044. 
Dobberstein  v.  Murphy,  470. 
Dobbin  v.  Rex,  1287. 
Dobbins  v.  Duquid,  98. 
Docter  v.  Darling,  906. 
Dodd  V.  Acklom,  855. 

V.  Burchell,  715. 

V.  Lee,  1099. 

V.  Witt,  896. 
Dodge  V.  Berry,  599. 

V.  Davis,  580. 

V.  Stacy,  1022. 

V.  Stevens,  1321. 

V.  Williams.  256. 
Dodson  V.  Grew,  313. 

V.  Hay,  493. 
Doe  V.  Allen,  7. 

V.  Amey,  88. 

V.  Axley,  520. 

V.  Barford,  964. 

V.  Barton,  123. 

V.  Bedford,  316. 

V.  Beeson,   1153. 

V.  Bell,  88. 

V.  Bennett,  1120. 

V.  Bernard,  471. 

V.  Bingham,   880. 

V.  Bluck,   131. 

V.  Brown,  124. 

V.  Browne,  138,  148. 

V.  Bumgarner,  489,  498. 

V.  Burlington,  561. 

V.  Carrol,  472. 

V.  Carter,  106,  147. 

V.  Chains,  360. 

V.  Chamberlaine,  139,  142. 

V.  Clarke,  992. 

V.  Coats,  1001. 

V.  Cobb,  1018. 

V.  Cole,  272. 

V.  Collis,  62. 

V.  Considine,  47.  288,  289,  290, 
292. 

V.  Courtenay,  854. 

V.  Cox,  138,  142. 

V.  Day,  90. 

V.  Dill,  341. 

V.  Dorvell,  301. 

V.  Ellis,  278. 

V.  Evans,  961,  1119. 

V.  Ewart,  334. 

V.  Eyre,  341. 

V.  Fonnereau,  357. 

V.  Galliers,  1142. 

V.  Green,  145. 


TABLE  OF  CASES. 


1361 


[references   ABE   TO   PAGES.] 


Doe  V.  Gregory,  1011. 

V.  Grimes,  1197. 

V.  Gwinnel,  474,  477. 

V.  Harris,  957. 

V.  Hilder,  735. 

V.  Hines,  861. 

V.  Howell,  295,  328. 

V.  Hull,  1011. 

V.  Jones,  568. 

V.  Ketchum,  1319. 

V.  Knight,  928,  929,  930. 

V.  Ladd,  621. 

V.  Lakeman,  884. 

V.  Lock,  872. 

V.  Long,  293. 

V.  McLoskey,  1184. 

V.  Maisey,  149,  1204. 

V.  Manning,  1115. 

V.  Martin,  289,  291,  295. 

V.  Meyler,  790. 

V.  Morgan,  327. 

V.  Oliver,  306,  1040, 

V.  Pearson,  1137. 

V.  Perkes,  958. 

V.  Perryn,  288. 

V.  Pickett,  295. 

V.  Porter,  144,  147,  889. 

V.  Price,  142. 

V.  Pritchard,  1161. 

V.  Provoost,  290,  291. 

V.  Ray,  882. 

V.  Richards,   138. 

V.  Roake,  627. 

V.  Robertson,  1158. 

V.  Rock,  140. 

V.  Roe,  938,  955,  1044,  1119. 

V.  Rusham,  1115,  1116. 

V.  Scudamore,   287. 

V.  Seaton,  1041. 

V.  Selby,  337. 

V.  Sheffield,  955. 

V.  Sherman,   123. 

V.  Smaridge,  147,  153. 

V.  Smeddle,  57,  64. 

V.  South.  1018. 

V.  Stratton,  88,  131. 

V.  Thomas,  853. 

V.  Thompson,  889. 

V.  Thorp,  1003. 

V.  Tunnell,  1169. 

V.  Turner,  150,  525,  924. 

V.  Upchurch,  1318. 

V.  Wainewright,  301. 

V.  Walters,   1047. 

V.  Webb,  302,  472. 

V.  Wells,  134. 
Real  Prop.— 86. 


Doe  V.  Wheeler,  883. 

V.  Williamson,  1158. 

V.  Wilson,   566. 

V.  Wood,  142,  745, 
Doggett  V.  Hart,  247,  582. 
Doherty  v.  Allman,  560,  561,  568. 

V.  Matsell,   1010,  loll. 
Dohoney  v.  Taylor,  632. 
Dolbear  v.  Norduft,  1270. 
Dold  V.  Geiger,  411. 
Dolliff  V.  Boston  &  M.  R.  Co.,  709, 

710. 
Dolloff  V.  Hardy,  823. 
Dolph  V.  Hand,  1150,  115L 

V.  White,  118. 
Dolphin  V.  Aylward,  1114,  1115. 
Donald  v.  Hewitt,  1282. 
Donaldson  v.   Hibner,   1046. 
Donegan  v.  Donegan,  382,  383. 
Donelly  v.  Eastes,  166,  174,  188. 
Donelson  v.  Polk,  781. 
Donkersley  v.  Levy,  854. 
Donley  v.  Hays,  1228,  1229. 
Donnell  v.  Harshe,  535. 
Donnelly  v.  Edelin,  1279. 
Donner  v.  Palmer,  1308. 
Donnor  v.  Quartermas,  396,  400. 
Donohoo  V.  Lea,  267. 
Donohue  v.  McNichol,  345. 
Donovan  v.  Simmons,  1313. 

V.  Ward,  1150,  1151. 
Doo  V.  Brabant,  340. 
Doolittle  V.  Lewis,  1271. 
Dooly  V.  Stringham,  508,  567. 
Doran  v.  Central  Pac.  R.  Co.,  1005. 

V.  Piper,  634. 
Doren  v.  Gillum,  871. 
Dority  v.  Dunning,  734. 
Dorman  v.  Bates  Mfg.  Co.,  717. 
Dorr  V.  Dudderar,  537,  1211,  1213. 

v.  Johnson,  278,   289,  329. 

V.  Lovering,  292,  361. 
Dorrance  v.  Jones,  110. 
Dorrell  v.  Collins,  872. 

V.  Johnson,  150. 
Dorris  v.  King,  530. 

V.  Sullivan,  701. 
Dorrity  v.  Rapp,  670. 
Dorsey  v.  Hall,  264,  1171. 

V.  St.    Louis,   A.    &    T.    H.    R. 
Co.,  752,  756,  758. 
Doscher  v.  Blackiston,  539,  553. 
Doswell  V.  Adler.  1312. 
Doton  V.  Russell,  1236. 
Doty  V.  Teller,  57,  58. 
Dougherty  v.   Cooper,  1113. 


1362 


TABLE  OF  CASES. 


[BEFEKENCES    ABE   TO   PAGES.] 


Dougherty  v.  McColgan,  1207. 

V.  Matthews,  177. 
Douglas  V.  Cooney,  733. 

V.  Lock,  872. 

V.  Shumway,  529. 
Douglas  County  v.  Union  Pac.  Ry. 

Co.,  264. 
Douglass  V.  Dickson,  424. 

V.  Durin,  1226,  1264. 

V.  Herms,  179. 

V.  McCrackin,  1100. 

V.  Oldham,  922. 

V.  Thomas,  903. 

V.  Wiggins,  577. 
Dougrey  v.  Topping,  466. 
Dousadow  v.  Wilde,  627. 
Douthett  V.  Winter,  1129. 
Dovaston  v.  Payne,  588. 
Dovey's  Appeal,  1098. 
Dow  V.  Jewell,  229,  232,  403. 

V.  Sayward,  1317. 

V.  Whitney,   1092,  1097. 
Dowd  V.  Fawcett,  554. 

V.  Tucker,  234. 
Dowdy  V.  Blake,  1293. 
Dowell  V.  Tucker,  1005. 
Dowling  V.  Hennings,  1032. 

V.  McKenney,  858. 
Downard  v.  Groff,  1204. 
Downend  v.  Kansas  City,  976,  978. 
Downer  v.  Smith,  400,  903. 
Downes  v.  Long,  292. 
Downey  v.  Murphy,  953. 
Downing  v.  Bimey,  288. 

V.  Marshall,  226,  335. 

V.  Mays,  999,  1000. 

V.  Palmateer,  1244. 
Downs  V.  Looy,  1255. 
Downshire  v.  Sandys,  570. 
Doyle  V.  Coburn,  1123. 

V.  Lord,  706. 

V.  Ritter.  712. 

V.  Union  Pac.  Ry.  Co.,  103. 

V.  Wade,  1004,  1097. 

V.  Whalen,  251. 
Dozier  v.  Gregory,  575,  576. 

V.  Mitchell,  1203. 
Drake  v.  Brown,  306,  308. 

V.  Drake,  61. 

V.  Lacoe,  108,  115. 

V.  Moore,  1128. 

V.  Paige,  1171. 

V.  Ramsay,  1149. 

V.  Root,  1131,  1169. 

V.  Wells,  531,  684. 
Drakford  v.  Turk,  1205. 


Dray  v.  Dray,  399. 
Drayton  v.  Drayton,  337. 

V.  Marshall,  1197. 
Dreese  v.  Meyers,  1129. 
Drennen  v.  Walker,  396. 
Drew  V.  Arnold,  925. 

V.  Peer,  681. 

V.  Wakefield,  174,  956. 
Drewry  v.  Montgomery,  442. 
Drey  v.  Doyle,  1085. 
Driggs  V.  Dwight,  91. 

V.  Phillips,  817,  818. 
Driggs  &  Co.'s  Bank  v.  Norwood, 

1112. 
Drown  v.  Smith,  561,  565. 
Druid    Park    Heights    Co.   v.    Oet- 

tinger,  242,  612,  620,  621. 
Drummond  v.  Drummond,  340. 

V.  Jones,  622. 
Drury  v.  Connell,  950. 

V.  Drury,  460,  463. 

V.  Foster,  868. 

V.  Holden,    1224. 

V.  Kent,  743. 

V.  Midland  R.  Co.,  1073. 
Drusadow  v.  Wilde,  628. 
Dryden  v.  Hanway,  230,  231,  1283. 
Dubois  V.  Beaver,  532. 

V.  Campau,  400. 

V.  Marshall,  1119. 
Du  Bois   Cemetery  Co.  v.   Griffin, 

978. 
Dubs  V.  Dubs,  491,  492,  493. 
Dubuque  v.  Benson,  973. 

V.  Maloney,  893,  894. 
Ducie  V.  Forue,  231. 
Ducker  v.  Burnham,  282,  285. 
Duckett  V.  Crider,  1004. 
Duddick  v.  St.  Louis,  K.  &  N.  W. 

Ry.  Co.,  757. 
Dudgeon  v.  Dudgeon,  1281. 
Dudley  v.  Bosworth,  229,  233. 

V.  Foote,  545,   546. 

V.  Hurst,  540. 

V.  Trustees  of  Frankfort,  817. 

V.  Warde,  549. 
Duer  V.  Allen,  573. 

V.  James,  930. 
Duff  V.  Hoffman.  1299. 
Duffey  V.  Rafferty,  220. 
DufReld  V.  Rosenzweig,  745. 
Duffy  V.  McGuiness,  1251. 
Dugan  V.  Gittings,  492. 
Dugdale,  In  re,  1136,  1137. 
Dugger  V.  Aglesby,  910. 

V.  Dugger,  493. 


TABLE  OF   CASES. 


1363 


[BEFEEENOES   ABE   TO   PAGES.] 


Duke  V.  Harper,  134,  1010. 

V.  Reed,  1200. 
Dukes  V.  Spangler,  927. 
Dulanty  v.  Pynchon,  1134. 
Dulany  v.  Green,  1153. 

V.  Middleton,  333. 
Dumell  V.  Terstegge,  1188. 
Dumey  v.  Schoeffler,  170. 
Dumn  V.  Rothermel,  87. 
Dumpor's  Case,  176,  184,  185. 
Duncan  v.  Central  Passenger  Ry. 
Co.,  766,   769. 

V.  Custard,  1307. 

V.  Drury,  1251. 

V.  Hayes,  650. 

V.  Hodges,  880. 

V.  Louisville,  1231,  1293. 

V.  Moore,  504. 

V.  Navassa     Phosphate     Co., 
429,  430. 

V.  Pope,  934. 

V.  Rodecker,  733. 

V.  Sylvester,  394,395,403,592, 
826. 

V.  Terre  Haute,  444,  448,  467. 
Duncklee  v.  Webber,  84,  96. 
Duncomb's  Case,  816. 
Duncomb  v.  Duncomb,  438. 
Duncombe  v.  Felt,  565',  569. 
Dundas  v.  Hitchcock,  451. 
Dundy  v.  Chambers,  11. 
Dunham  v.  Averill,  961. 

v.  Dey,  1188. 

V.  Isett,  1201. 

V.  Osborn,  439,  440. 

V.  Wright,  417. 
Dunklee  v.  Crane,  1302. 

V.  Wilton  R.  Co.,  711,  905. 
Dunkley  v.  Van  Buren,  1277. 
Dunlap  V.  Bullard,  114. 

V.  Gallatin   County,   1319. 

V.  Wilson,  1241. 
Dunn  V.  English,  718. 

V.  Flood,  353. 

V.  Mellon,  93. 

V.  Raley,  1175. 

V.  Rodgers,  1217. 

V.  Sargent,  307. 

V.  Wheeler,  1009. 

V.  Yakish,  265. 
Dunne's  Trusts,  643. 
Dunne  v.  Trustees  of  Schools,  139, 

145. 
Dunscomb  v.  Dunscomb,  493.-' 
Dunseth  v.  Bank  of  United  States, 
476. 


Dunton  v.  Sharpe,  1254. 

Duppa  V.  Mayo,  175. 

Dupree  v.  Dupree,  577. 

Durando  v.  Durando,  261,  438,  439. 

Durant  v.  Crowell.  1086. 

v.  Ritchie,  215. 
Durbin  v.  Oregon  R.  &  Nav.  Co., 

86. 
Durette  v.  Briggs,  1291. 
Durham  v.  Angler,  469,  482. 
Durham  &  S.  Ry.  Co.  v.  Walker, 

704,  872. 
Durkee  v.  Felton,  484. 
Durland  v.  Seller,  509. 
Duryea  v.  Duryea,  336. 
Duryee  v.  NeJw  York,  178. 
Dustin  V.  Cowdry,  156. 
Dutcher  v.  Culver,  774. 
Dutton  V.  Gerrish,  99. 

v.  Strong,   598. 

V.  Stuart,  452. 

V.  Taylor,  714. 

V.  Warschance,  1169,  1201. 
Duval  V.  McLoskey,  1184. 
Duvall  V.  Farmers'  Bank,  413. 
Dwenger  v.  Geary,  699. 
Dwight  V.  Hayes,  688. 

V.  Newell,  1312. 
Dwinell  v.  Bliss,  928,  930. 
Dye  V.  Cooke,  1130,  1131. 

V.  Mann,  1135. 
Dyer  v.  Britton,  911. 

V.  Clark,  388,  442. 

V.  Dyer,    228,    229,    231,    232, 
234. 

V.  Eldridge,  1014. 

V.  St.  Paul,  672. 

V.  Sanford,  700. 

V.   Shurtleff,  1272. 

V.  Wightman,  135. 

V.  Wittier,  500. 
Dyett  V.  Pendleton.  128. 
Dyke  v.  Rendall.  463. 
Dyson,  In  re,  1281. 


E. 


Eacho  V.  Cosby,  1183. 
Eadie  v.  Slimmon,  879. 
Eadon  v.  .Jeffcock,  520. 
Eads  V.  Rutherford,  398. 
Eager  v.  Furnivall,  487. 

V.  Whitney,    308. 
Eames  v.  Germania  Turn  Verein, 
1307. 

v.  Preston,  922. 


1364 


TABLE  OF  CASES. 


[befekences  are  to  pages.] 


Eames  v.  Salem  &  L.  R.  Co.,  589, 

590. 
Earl  V.  De  Hart,  655. 
Earle  v.  Arbogast,  101,  572,  573. 

V.  Earle,  939,  1145. 

V.  Fisk,  1093. 

V.  Hale,  123. 
Earll  V.  Earn,  1134. 
Earlom  v.  Saunders,  257. 
Early  v.  Dorsett,  261. 

V.  Friend,  393. 
Earnhart  v.  Earnhart,  315. 
East  V.  Pugh,  1095. 
East  Hampton  v.  Kirk,  1035. 
East  Jersey   Iron   Co.    v.   Wright, 

681,  684,  746. 
East  Tennessee,  V.  &  G.  Ry.  Co.  v. 

Davis,  1013. 
Eastabrook  v.  Hapgood,  475. 
Easter  v.  Little  Miami  R.  Co.,  753, 

754,  755. 
Eastern    Telegraph    Co.    v.    Dent, 

187. 
Easterling  v.  Chiles,  1306. 
Eastham  v.  Powell,  937. 

V.  Sallis,  1306. 
Eastman  v.  Foster,  1228. 

V.  Knight,   1316. 

V.  Thayer,  1240. 
Easton  v.  Seofield,  400. 
Eaton  V.  Boston,  C.  &  M.  R.  Co., 
1070. 

V.  Chesebrough,  904. 

V.  Eaton,  1153,  1154,  1155. 

V.  Green,  1179. 

V.  Lyman,  914. 

V.  Simonds,  1206. 

V.  Tallmadge,  394. 

V.  Trowbridge,  1092. 

V.  Whitaker,  411. 

V.  Whiting,    1196,    1268,    1274. 
Eaves  v.  Estes,  538,  542. 
Ebbert's  Appeal,  388. 
Ebell  V.  Bursinger,  220. 
Eberly  v.  Behrend,  960. 
Ebert  v.  Wood,  404. 
Ecclesiastical  Com'rs  for  England 

V.  Kino,  734. 
Ecclesiastical  Com'rs  of  Ireland  v. 

O'Connor,  789. 
Echols  V.  Jordan,  60. 
Ecke  V.  Fetzer,  1286. 
Eckerson  v.  Crippen,  1026. 
Eckhart  v.  Irons,  158. 
Eckman  v.  Eckman,  849,  863,  929. 
Eclipse  Oil  Co.  v.  South  Penn  Oil 
Co.,  138. 


Ecroyd  v.  Coggeshall,  164,  165. 
Eddy  V.  St.  Mars,  892,  1036. 
Edes  V.  Herrick,  219. 
Edgerly  v.  Barker,  361. 
Edgerton  v.  McMullan,  736,  738. 

V.  Page,  129. 
Edmands  v.  Boston,  135. 
Edmison  v.  Lowry,  128. 
Edmondson  v.  Dyson,  239. 

V.  Welsh,  443. 
Edmonson  v.  Phillips,  1289. 
Edney  v.  Benham,  773. 
Edrington  v.  Harper,  1177,  1182. 
Edsall  V.  Merrill,  392. 
Edson  V.  Munsell,  1023. 
Edwards'  Estate,  In  re,  1192. 
Edwards  v.  Beall,  870. 

V.  Bibb,  342,  431. 

V.  Clark,  906,  908. 

V.  Hale,  153. 

V.  Hammond,  289,  290,  334. 

V.  Kearzey,  1131. 

V.  McClurg,  517. 

V.  McKernan,  1078,  1080. 

V.  Maupin,  621. 

V.  New  York  &  H.  R.  Co.,  104. 

V.  Reid,   1134. 

V.  Thompson,  1088. 

V.  West,  266. 
Edwards    &     McCulloch    Lumber 

Co.  V.  Mosher,  1301. 
Edwardsville  R.  Co.  v.  Sawyer,  48. 
Eels    V.    American    Telephone    & 

Telegraph  Co.,  811,  812,  813. 
Bffinger  v.  Lewis,  138. 
Bge  V.  Ege,  780. 

V.  Kille,  554. 

V.  Medlar,  492.  497,  1015. 
Egerton  v.  Brownlow,  237. 

V.  Massey,  297. 
Egremont  v.  Courtenay,  854. 
Egremont   Burial   Board   v.   Egre- 
mont Iron  Ore  Co.,  516. 
Ehlers  v.  Elder,  1304. 
Bhrick  v.  Ehrick,  1124. 
Ehrman   v.   Mayer,    778,   785,    787, 

793. 
Eichelberger  v.  Barnitz,  63. 

V.  Gitt,  1293. 
Eisenach  v.  Hatfield,  597. 
Eisenbach  v.  Hatfield,  592. 
Elder  v.  Burrus,  597. 

V.  McClaskey,  390. 

V.  Schumacher,  1154. 
Eldred  v.  Meek,  348,  359,  361. 
Eldredge  v.  Forrestal,  438,  439. 


TABLE  OF  CASES. 


1365 


[BEFEBENOES  ABE  TO  PAGES.] 


Eldridge  v.  Post,  1310. 
Electric    City    Land    &    Improve- 
ment  Co.  V.   West  Ridge   Coal 
Co.,  751,  753. 
Eleventh  Avenue,  In  re,  975. 
Eley's  Appeal,  562. 
Elfelt   V.    Stillwater   St.    Ry.    Co., 

1033. 
Elgin  V.  Beckwith,  975. 
Elias  V.   Snowdon  Slate  Quarries 

Co.,  562,  563. 
Eliason  v.  Grove,  707,  708,  712. 
Elibank  v.  Montolieu,  413. 
Elizabethport     Cordage      Co.      v. 

Wliitlock,  1099. 
Elkhart  Car  Works  v.  Ellis,  176, 

180. 
Elle  V.  Young,  606,  613. 
Ellenbogen  v.  Griffey,  1272. 
Ellerson  v.  Westcott,  1162. 
Ellington  v.  Ellington,  1016. 
Elliot  V.  Fitchburg  R.  Co.,  656,  657, 
658,  673. 

V.  Merryman,  244. 

V.  Shepherd,  688. 

V.  Sleeper,  866,  867. 

V.  Small,  876. 
Elliott,  Ex  parte,  640. 

V.  Aiken,  855. 

V.  Fair  Haven  &  W.  R.   Co., 
812. 

V.  Horn,  1148. 

V.  Ince,  1155. 

V.  Piersol,  926. 

V.  Sackett,  1217, 

V.  Smith,  124. 

V.  Stone,  88,  92. 

V.  Teal,  411. 

V.  Thompson,  913. 

V.  Waring,  413. 

V.  Wood,  1272. 
Ellis  V.  Alford,  1152. 

V.  Bassett,  708,  713,  739. 

V.  Blue       Mountain       Forest 
Ass'n,  715. 

V.  Davis,  507,  1124. 

V.  Elkhart     Car    Works    Co., 
174. 

V.  Ellis,  278. 

V.  Fisher,  50. 

V.  Johnson,  1218. 

V.  Kyger,  181,  423. 

V.  Lamme,  1229. 

V.  Leek,  1258. 

V.  Paige,  87,  131,  142,  143,  525. 

V.  Welch,  97. 


Ellis  V.  White,  1123. 
Ellison     V.     Daniels,     1196,     1197, 
1230,  1263. 

V.  Ellison,  223. 
Ellithorpe  v.  Reidesil,  528. 
Fillmore  v.  Ellmore,  510. 
Ellsberry  v.  Boykin,  1256. 
Ellsworth  V.  Lockwood,  1247,  1248. 
EUwood  V.  Plummer,  290,  305. 
Elmendorff  v.  Lockwood,  450,  451, 

467,  470. 
Elmer  v.  Loper,  1206. 
Elmore  v.  Mustin,  60. 
Elms  V.  Elms,  958. 
Eloy  V.  Norwood,  1244. 
Elsberry  v.  Boykin,  935,  936,  1176. 
Elster  V.  Springfield,  813. 
Elstner  v.  Fife,  622. 
Elston  V.  Jasper,  1153,  1154. 

V.  Piggott,  399. 
Elting  V.  Palen,  556. 
Elwell  V.  Bumside,  580. 

V.  Hitchcock,  1133,  1314. 

V.  Shaw,  937. 
Elwes  V.  Maw,  549. 
Ely  V.  Beaumont,  1308. 
V.  Dix,  101,  625,  641. 

V.  Parsons,  1033. 

V.  Stannard,  852. 

V.  Wilcox,  1091. 
Elyton    Land    Co.     v.    Iron    City 
Steam    Bottling    Works, 
1112. 

V.  South  &  North  Alabama  R. 
Co.,  163. 
Emans  v.  TurnbuU,  593. 
Emanuel  College  v.  Evans,  1166. 
Embrey  v.  Owen,  657,  673. 
Embury  v.  Sheldon,  337. 
Emerick  v.  Tavener,  121,  123,  152, 

154. 
Emerson's  Homestead,  In  re,  1127. 
Emerson  v.  European  &  N.  A.  Ry. 
Co.,  1172,  1174. 

V.  Harris,  430,  446. 

V.  Hedrick,  1322. 

V.  Mooney,  46,  704,  873. 

V.  Simpson,  119,  163,  165. 
Emery,  In  re,  963. 

V.  Fowler,  889. 

V.  Haven,  631. 

V.  Raleigh  &  G.  R.  Co.,  1026, 
1029. 
Emigrant  Industrial  Sav.  Bank  v. 

Goldman,  1262.  1267. 
Emison  v.  Whittlesey,  284. 


1366 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Emmel  v.  Headlee,  861. 
Emmons  v.  Murray,  1150. 

V.  Scudder,  153. 
Emporia  v.  Soden,  661,  667. 
Emson  v.  Polhemus,  1310. 
Enfield   Toll   Bridge   Co.   v.   Hart- 
ford &  New  Haven  R.  Co.,  11. 
Engel  V.  Ayer,  46,  686,  875. 
England  v.  Downs,  495. 

V.  Slade,  123,  247. 
Engle  V.  Haines,  1222,  1224. 
Englebert  v.  Troxell,  1148,  1151. 
English  V.  Carney,  1254. 

V.  Helms,  922. 
Enno,r  v.  Thompson,  926. 
Eno  V.  Del  Vecchio,  727. 
Enos  V.  Sanger,  1219,  1220. 
Ensign,  In  re,  464. 
Ensign  v.  Batterson,  1207. 
Ensminger  v.  People,  828. 
Enterprise  Oil   &   Gas  Co.  v.  Na- 
tional Transit  Co.,  391,  392. 
Enyeart  v.  Davis,  854. 
Epley  V.  Witherow,  1085. 
Epps  V.  Flowers,  1149,  1151. 
Equitable     Life     Assur.     Soc.     v. 

Brennan,  767. 
Equitable  Mortgage  Co.  v.  Norton, 

1132. 
Erck  V.  Church,  1002. 
Erickson  v.  Rafferty,  1085. 
Erlinger  v.  Boul,  1224. 
Ernott  V.  Cole,  775. 
Ernsting  v.  Gleason,  585. 
Erskine  v.  Davis,  865. 

V.  Moulton,  886. 
Erwin  v.  Acker,  1248. 

V.  Lewis,  1096. 
Escheator  of   St.    P.   &    St.    M.   v. 

Smith,  213. 
Esdon  V.  Colburn,  534. 
Eslava  v.  Lepretre,  425,  449. 
Esling  V.  Williams,  1026. 
Eslow  V.  Mitchell,  1237. 
Espley  V.  Wilkes,  717. 
Estes  V.  German  Nat.  Bank,  930. 
Esty  V.  Baker,  141,  143,  149. 
Etcheborne  v.  Auzerais,  510. 
Eton   College  v.  Winchester,   858. 
Eubank  v.  Landram,  507. 
Eureka  v.  Armstrong,  977. 
Eureka  Co.  v.  Edwards,  1150. 
Evan's  Appeal,  259,  958,  960. 
Evans  v.  Bagshaw,  406. 
V.  Ball,  258. 
v.  Bicknell,  1047. 


Evans  v.  Bidwell,  124. 

V.  Blackiston,  622. 

V.  Brady,  45. 

V.  Brittain,  377. 

V.  Caiman,  1124,  1125. 

V.  Dana,  708. 

V.  Elliott,  1205. 

V.  Enloe,  1291. 

V.  Evans,  430,  431,  511,  961. 

V.  Feeny,  1311. 

V.  Hamrick,  110,  111,  113. 

V.  Hardy,  522,  525. 

V.  Kingsberry,  412. 

V.  McKanna,  855. 

V.  Merriweather,   656,   657. 

V.  Philadelphia  Club,  11. 

V.  Reed,    149. 

V.  Roberts,  528,  531. 

V.  Templeton,    1094. 

V.  Webb,  455,  469. 

V.  Welch,  1099. 
Evelyn  v.  Evelyn,  1245,  1246. 
Evenson  v.  Webster,  869. 
Everedge  v.  Alexander,  1028. 
Everett  v.  Edwards,  712,  726. 

V.  Everett,  935. 

V.  Whitfield,  1004. 
Everitt  v.  Everitt,  433. 
Everman  v.  Robb,  1174. 
Evers  v.  Challis,  337,  360. 
Everson  v.  McMuUen,  436. 
Everts  v.  Agnes,  933. 

V.  Beach,  392. 
Evitts  V.  Roth,  1000. 
Ewer  V.  Hobbs,  1168. 
Ewing  V.  Colquhoun,  594. 

V.  Jones,  246. 

V.  Shropshire,  57. 

V.  Smith,  415. 
V.  Wilson,  246. 
Excelsior   Fire   Ins.   Co.    v.    Royal 

Ins.  Co.,  1209,  1210. 
Exurn  v.  Brister,  843. 
Eylar  v.  Eylar,  1089. 
Eyre  v.  Jordan,  103. 
Eyster  v.  Hatheway,  927,  1129. 
Ezell  V.  Dodson,  384. 
Ezelle  V.  Parker,  140. 
Ezzel  V.  Watson,  1272.- 


F. 


Factors'    &  -Traders'    Ins.    Co.   V. 

Murphy,  1251. 
Fagan  v.  Walker,  497,  500. 
Fahn  v.  Bleckley,  1076. 


TABLE  OF  CASES. 


1367 


[references  are  to  pages.] 


Fahnestock  v.  Fahnestock,  257. 
Fain  v.  Smith,  927. 
Fair  v.  Brown,  1198. 
Fairbank  v.  Cudworth,  1211. 
Fairbarn  v.  Middlemiss,  233. 
Fairchild  v.  Cliastelleux,  381,  411. 
V.  Fairchild,  387,  520,  774. 
V.  Marshall,  458. 
V.  St.  Paul,  819. 
Fairfax  v.  Hunter,  1159. 
Faith  V.  Bowles,  164. 
Falck  V.  Marsh,  75. 
Fales  V.  Currier,  60. 
Falkland  v.  Bertie,  168. 
Fall  River  Whaling  Co.  v.  Borden, 

387. 
Fallass  v.  Fierce,  1096. 
Fallbrook  Irrigation  Dist.  v,  Brad- 
ley, 717. 
Falls  Village  Water  Power  Co.  v. 

Tibbetts,  895. 
Falmouth  Nat.  Bank  v.  Cape  Cod 

Ship  Canal  Co.,  1284. 
Faloon  v.  Flannery,  617. 
V.  Schilling,  650,  651. 
V.  Simshauser,  59,  1001. 
Fankboner  v.  Corder,  729,  1029. 
Fant  V.  Talbot,  1124,  1125. 
Farabow  v.  Green,  559. 
Faran  v.  Robinson,  1321. 
Farelly     v.      Metairie      Cemetery 

Ass'n,  699. 
Farewell  v.  Dickenson,  774. 
Fargason  v.  Edrington,  1089. 
Farlee  v.  Farlee,  930. 
Farley  v.  Craig,  776,  778,  785. 

V.  Gate   City    Gas    Light   Co., 

674. 
V.  Hopkins,  1124. 
V.  Parker,  1154. 
Farlin  v.  Sook,  1113. 
Farlow  v.  Farlow,  628. 
Farmer  v.  Grose,  1182. 

V.  Young,  695. 
Farmers'  Bank  v.  Hoff,  291,  1308. 

V.  Mutual  Assur.  Soc,  1197. 

Farmers'    Loan    &    Trust    Co.    v. 

Hendrickson,   540. 

V.  Maltby,  1080. 

Farmers'  Nat.  Bank  v.  Gates,  1217. 

Farmers'    &    Mechanics'    Bank   v. 

Drury,  1176. 
Farmers'  &  M.  Ins.  Co.  v.  Jensen, 

205. 
Farmers'  &  M.  Nat.  Bank  of  Fort 
Worth  V.  Taylor,  1304. 


Farnham  v.  Thompson,  164. 
Farnum  v.  Hefner.  106,  107. 

V.  Loomis,  432. 

V.  Peterson,  1120. 

V.  Piatt,  721. 
Farr  v.  Sherman,  417. 

V.  Spain,  695. 
Farrand  v.  Gleason,  397. 
Farrant  v.  Lovell,  1213. 
Farrar  v.  Bridges,  928. 

V.  Dean,  1159. 

V.  Eastman,  1018. 

V.  Farrar,  934. 

V.  Fessenden,  1119. 

V.  Stackpole,  539. 

V.  Winterton,  267. 
Farrell  v.  Lewis,  1229. 

V.  Parlier,  1257. 

V.  Richards,  657. 
Farrington  v.  Barr,  228. 

V.  Kimball,  109,  121. 

V.  Putnam,  1158. 

V.  Turtelott,  906. 
Farrior  v.  Houston,  1318. 
Farrow  v.  Farrow,  463. 
Farson  v.  Goodale,  143. 
Farwell  v.  Cotting,  447. 

V.  Easton,  179. 

V.  Rogers,  422. 
Faulcon  v.  Johnston,  525. 
Faulk  V.  Dashiell,  618,  628. 
Faulkner  v.  Brockenbrough,  1168. 

V.  Davis,  612. 
Fauver  v.  Fleenor,  508,  511. 
Favill  V.  Roberts,  1048. 
Fawcett  v.  York  &  N.  M.  Ry.  Co., 

589. 
Fawcetts  v.  Klmmey,  1311. 
Fay  V.  Brewer,  572. 

V.  Halloran,   775. 

V.  Muzzey,  556,  558. 

V.  Whitman,  653. 

V.  Wood,  1045. 
Fears  v.  Albea,  1248. 

V.  Brooks,  414. 
Feather  v.  Strohoecker,  405. 
Fee  V.  Cowdry,  75. 

v.  Swingly,  1200. 
Feeney  v.  Howard,  228,  877. 
Felch  V.  Felch,  1202. 

V.  Hooper,  264,  1264. 
Felker  v.  Richardson,  853,  857. 
Fellows  V.  New  Haven,  671. 
Fellows  V.  Allen,  963. 

v.  Dow,  1127. 

V.  Ripley,  205. 


1368 


TABLE  OP  CASES. 


[beferences  aee  to  pages.] 


Felton  V.  Leigh,  879. 
Fenby  v.  Johnson,  338. 
Fenlason  v.  Rackliff,  546. 
Fennesy  v.  Fennesy,  444. 
Fentiman  v.  Smith,  680. 
Fenton  v.  Miller,  392,  397,  930. 

V.  Montgomery,  570. 

V.  Steere,  406. 
Ferguson  v.  ,  571. 

V.  Bobo,  1148. 

V.  Dunoar,  336. 

V.  Firmenich  Mfg.  Co.,  658. 

V.  Houston,  1150. 

V.  Kumler,  1135. 

V.  Mason,  320. 

V.  Peden,  1015. 

V.  Roe,  955. 

V.  Scott,  1058,  1321. 

V.  Speith,  1128. 

V.  Spencer,  681. 

V.  Tweedy,  493. 
Ferrand  v.  Wilson,  563. 
Ferrea  v.  Knife,  656. 
Ferrell  v.  Ferrell,  1024,  1029. 
Ferris    v.    Montgomery    Land    & 
Imp.  Co.,  396,  397. 

V.  Spooner,   1254. 

V.  Wilcox,  1177. 
Ferry  v.  Laible,  618. 
Ferson  v.  Dodge,  291. 
Fesmire's  Estate,  241. 
Festing  v.  Allen,  291,  292,  293,  327. 
Fetters  v.  Humphreys,  706,  708. 
Few  V.  Perkins,  160. 
Fidler  v.  Lash,  641. 
Field  V.  Gooding,  1273. 

V.  Leiter,  726. 

V.  Mark,  715. 

V.  Mills,  113,  114. 

V.  Moody,  1286. 

V.  Peeples,  292. 

V.  Providence,  165. 

V.  Seabury.  844. 

V.  Snell,  917. 

V.  Stagg,  868. 
Fifield  V.  Farmers'  Nat.  Bank,  537, 

541. 
Fifty  Associates  v.  Grace,  109. 
Fillebrown  v.  Hoar,  130,  786. 
Fillmore  v.  Jennings,  1035. 
Finch  V.  Finch,  233. 

V.  Moore,  855. 

V.  Riverside    &    A.    Ry.    Co., 
812. 

V.  Ullman,  1014. 
Findlay  v.  Smith,  561,  563,  565. 


Findley  v.  Findley,  462. 

Fink  v.  O'Neill,  1130. 

Finlay  v.  King's  Lessee,  166,  173. 

Finlayson  v.  Finlayson,  877. 

Finley  v.  Simpson,  750,  1217. 

V.  Thayer,  1195. 
Finn  v.  Wisconsin  River  Land  Co., 

1007. 
Firebaugh  v.  Ware,  1308,  1314. 
First  Baptist  Church  v.  Witherell, 

697,  730. 
First  Baptist  Soc.  in  Andover  v. 

Hazen,  204. 
First    Baptist    Soc.    in    Leeds    v. 

Grant,  697. 
First  Nat.  Bank  v.  Stiles,  1231. 
First   Nat.    Bank   of   Attleboro   v. 

Hughes,  882. 
First  Nat.  Bank  of  Butte  v.  Bell 
Silver  &  Copper  Min.  Co.,  1268. 
First  Nat.  Bank  of  Clay  Centre  v. 

Beegle,  527,  528. 
First  Nat.  Bank  of  Davenport  v. 

Bennett,  1308. 
First  Nat.   Bank  of  Owatonna  v. 

Wilson,  1126. 
First  Nat.   Bank  of  Salem  v.  Sa- 
lem   Central    Flour    Mills    Co., 
1290. 
First  Parish  v.  Spear,  698. 
First  Parish  in  Sudbury  v.  Jones, 

553. 
First    Soc.    of    M.    B.    Church    v. 

Clark,  250. 
First  Universalist   Soc.   of  North 
Adams   v.   Boland,   190,   193-195, 
340,  353,  362. 
Fischer  v.  Johnson,  680,  684. 

V.  Laack,  704. 
Fish  V.  Fowlie,  1316. 
V.  French,  1230. 
V.  Howland,  1291. 
Fishback  v.  Lane,  1132. 
Fisher  v.  Bennehoff,  583. 
V.  Clark,  650. 
V.  Cowles,  1233. 
V.  Deering,  112. 
V.  Dixon,  540,  547,  550. 
V.  Eslaman,  219. 
V.  Fair,  614,  686. 
V.  Fields,  47. 
V.  Fobes,  233. 
V.  Grimes,  429. 
V.  Hall,  928,  930,  931. 
V.  Kean,  928. 
V.   Lightall,  99. 


TABLE  OF  CASES. 


1369 


[BEFERENCES   ABE  TO   PAGES.] 


Fisher  v.  Milliken,  109. 

V.  Mossman,  1256. 

V.  Provin,  382. 

V.  Smith,  897. 

V.  Spence,  948-950. 

V.  Strickler.  860. 

V.  Taylor,  1141. 

V.  Thukell,  104. 

V.  Wigg,  374,  377. 

V.  Wister,  331,  333. 
Fiske  V.  Tolman,  1217,  1218. 
Fitch  V.  Johnson,  753,  755,  756. 

V.  Rawling,  824. 
Fitchburg     Cotton      Manufactory 

Corp.  V.  Melven,  135,  783. 
Fithian  v.  Monks,  1277. 
Fitzgerald  v.  Barker,  1221. 

V.  Beebe,  135. 

V.  Libby,  1092. 

V.  Ryan,  166. 

V.  Standish,  625. 
Fitzhugh  V.  Croghan,  903. 
Fitzpatrick  v.  Boston  &  M.  R.  Co., 
735,  737. 

V.  Fitzpatrick,  880. 
Flack  V.  Gosnell,  391. 

V.  Green  Island,  978. 
Fladung  v.  Rose,  380. 
Flagg  V.  Dow,  854,  855. 

V.  Flagg,  1201. 

V.  Geltmacher,  1218,  1247. 

V.  Mann,  399,  401,  1178,  1181- 
1183. 
Flaherty  v.  Moran,  652. 
Flanagan  v.  Oberthier,  1307. 
Flanders  v.  Greely,  1171. 

V.  Hall,  1240. 

V.  Lamphear,  1190. 
Flaten  v.  Moorhead,  164,  735. 
Flatt  V.  Stadler,  1122. 
Fleet  V.  Hegeman,  600. 
Fleming  v.  Bumgarner,  1301. 

V.  Collins,  578. 

V.  Mills,  638. 

V.  Townsend,  1114,  1116. 
Fleschner  v.  Sumpter,  1082,  1174. 
Fletcher  v.  Ashbiirner,  254,  259. 
261. 

V.  Daugherty,  1254. 

V.  Evans,  680. 

V.  Herring,  557. 

V.  Kelly,  1171. 

V.  Livingston,  531,  679. 

V.  Monroe,  464. 

V.  Peck,  1116. 

V.  State  Capital  Bank,  507, 


Flickinger  v.  Shaw,  681. 
Flint  V.  Sheldon,  1179. 

V.  Winter   Harbor   Land    Co., 
1259. 
Flintham  v.  Bradford,  968. 
Flood  V.  Flood,  149. 
Florida  Southern  Ry.  Co.  v.  Brown, 

812,  894. 
Flower,  in  re,  647. 

V.  Elwood,  1188. 

V.  Peck,  179,  186. 
Flowers  v.  Flowers,  445. 
Floyd  V.  Ricks,   526,  921. 
Floyd  County  v.  Rome  St.  Ry.  Co., 

811,  812. 
Floyer  v.  Lavington,  1182,  1189. 
Fluker     v.    Georgia    Railroad     & 

Banking  Co.,  682,  684. 
Flynn  v.  Borneuf,  908. 

V.  Lee,  1012. 
Fobes  V.  Rome,  W.  &  C.  R.  Co., 

814. 
Fogg  V.  Clark,  49. 
Foley  V.  Cooper,  1135. 

V.  Rose,  1229. 

V.  Wilson,  566. 

V.  Wyeth,  670,  671. 
Folger  V.  Chase,  273.  • 
Folk  V.  Yarn,  869. 
Follansbee  v.  Johnson,  1219. 
Follett  V.  Reese,  1291. 
Folsom  V.  Cragen,  1302. 

V.  Howell,  878. 

V.  Underbill,   975,  978. 
Folts  V.  Huntley,  126,  910. 
Fonda  v.  Jones,  1291,  1292. 
Fonnereau  v.  Fonnereau,  357. 
Fontain  v.  Ravenel,  250,  252. 
Fontaine  v.  Boatmen's  Sav.  Inst., 
424,  425. 

V.  Dunlap,  437. 
Foorman  v.  Wallace,  1094. 
Foot  V.  Dickinson,  576,  577. 
Foote  V.  Burnett,  914. 

V.  Cincinnati,  791. 

V.  Gooch,  550. 

V.  Sanders,  73. 
Forbes  v.  Balenseifer,  679,  684,  978. 

V.  Caldwell,  1000. 

V.  Commonwealth,  724. 

V.  Gracey,  517. 

V.  Sweesy,  491. 
Forbing  v.  Weber,  957. 
Forbush  v.  Lombard,  883. 
Ford  v.  Cobb,  542,  543,  546. 

v.  Erskine.  427.  479,  565. 


1370 


TABLE  OF  CASES. 


[BEFEBENCES   ABE  TO   PAGES.] 


Ford  V.  Ford,  257,  644. 

V.  Harris,  736. 

V.  Knapp,  397. 

V.  Unity    Cliurch    Soc.    of   St. 
Joseph,  1080. 

V.  Wilson,  1000,  1304. 
Fordyce  v.  Hatliorn,  779. 
Fore  V.  Fore,  507-509. 
Forsaith  v.  Clark,  49. 
Forster  v.  Hale,  224. 

V.  Wandlass,  175. 
Forsyth  v.  Day,  938. 
Forsythe  v.  Price,  524. 
Fort  V.  Powell,  1125, 
Fort  Smith  v.  McKibbin,  817,  1006. 
Forteseue  v.  Bowler,  577. 
Forth  V.  Chapman,  63. 
Fortune  v.  Watkins,'433. 
Forwood  V.  Forwood,  461,  463. 
Fosdick  V.  Gooding,  474. 

V.  Schall,  544. 
Foss  V.  Crisp,  1158. 

V.  Van  Driele,  125. 
Fossion  V.  Landry,  975. 
Foster,  ex  parte,  6. 
Foster's  Appeal,  254,  255,  442,  959. 
Foster  v.  Browning,  678. 

V.  Carson,  1233. 

V.  Dennison,  862. 

V.  Divinel,  437,  443. 

V.  Equitable    Mut.     Fire    Ins. 
Co.,  1209. 

V.  Foster,  266,  906. 

V.  Hackett,  306,  1044. 

V.  Hilliard,  76. 

V.  Joice,  48. 

V.  Leland,  1134. 

V.  Mabe,  546. 

V.  Mackinnon,  879. 

V.  Mansfield,  929,  932,  933. 

V.  Mapes,  909. 

V.  Marshall,  498,  500. 

V.  Peyser,  96,  102. 

V.  Pierson,  910. 

V.  Reid,  120. 

V.  Reynolds,  1186. 

V.  Runk,  872. 

V.  Searsport    Spool    &    Block 
Co.,  827. 

V.  Smith,  331,  332. 

V.  Stewart,  49. 

V.  Van  Reed,  12t)9. 

V.  Walton,  1115. 

V.  Wright,   1035. 
Fothergill  v.  Fothergill,  635,  636. 
Fouch  V.  Wilson,  1287. 


Fourth  Nat.  Bank's  Appeal,  1229, 
Foute  V.  Fairraan,  1305. 
Fowler  v.  Black,  870. 

V.  Bott,  136. 

V.  Duhme,  333,  366. 

V.  Fay,  1217. 

V.  Fowler,  398. 

V.  Linguist,  978. 

V.  Saks,  727. 

V.  Shearer,  451,  937,  1144.. 
Fowley  v.  Palmer,  1206. 
Powlkes  V.  Wagoner,  1137. 
Fox  V.  Fox,  355. 

V.  Hall,  1092. 

V.  Mackreth,  235. 

V.  Nathans,  147. 

V.  Rumery,  305. 

V.  Union  Sugar  Refinery,  717, 

V.  Western  Pac.  R.  Co.,  1072. 
Francestown  v.  Deering,  231. 
Francis  v.  Garrard,  473. 

V.  Sayles,   1300. 

V.  Schoellkopf,  652,  674. 
Francks  v.  Whitaker,  300. 
Frank  v.  Conradi,  103. 

V.  Heidenheimer,   1080, 
Franke,  in  re,  455. 
Frankland  v.  Moulton,  544. 
Franklin  v.  Brown,  99. 

V.  Gorham,  1242. 

V.  Merida,  125. 

V.  Osgood,  613,  620,  623. 
Franklin  Min.  Co.  v.  O'Brien,  399, 
Franks  v.  Cravens,  544. 

V.  Lucas,   1126. 
Frater  v.  Hamilton  County,  814. 
Frazer  v.  Thatcher,  1312. 
Frazier  v.  Berry,  724. 

V.  Brown,  665,  667,  1030. 

V.  Myers,  729. 
Fred.   Miller  Brewing  Co.   v.   Ma- 

nasse,  1227. 
Frederick  v.  Devol,  545. 
Free  v.  Beatley,  442. 
Freed  v.  Brown,  1176. 
Freedman's   Savings   &   Trust  Co. 

V.  Earle,  1309. 
Freedom  v.  Norris,  980,  1036. 
Freeholders  of  Mercer  County  v. 

Pennsylvania  Ry.  Co.,  819. 
Freeland  v.  Preeland,  463. 

v.  Pearson,  627. 
Freeman  v.  Auld,  1221. 

V.  Bateman.  162. 

V.  Bellegarde,  887,  890. 

V.  Dawson,  552. 


TABLE  OF  CASES. 


1371 


[befeeences  are  to  pages.] 


Freeman  v.  Edwards,  788. 

V.  Foster,  907. 

V.  Freeman,  961. 

V.  Hartman,  495. 

V.  McLennan,  525. 

V.  Peay,  1176. 

V.  Prendergast,  621. 

V.  Sayre,  725. 
Freke  v.  Lord  Carberry,  16. 
Freligh  v.  Piatt,  697. 
Frelinghuysen  v.  Central  R.  Co.  of 

New  Jersey,  1073. 
French  v.  Allen,  13] 9. 

V.  Davies,  453. 

V.  Edwards,  247. 

V.  Freeman,  557,  558. 

V.  French,  1153. 

V.  Lord,  448,  450,  467,  473. 

V.  Marstin,  718,  719. 

V.  Old  South  Soc,  353. 

V.  Pearce,  1014,  1015. 

V.  Peters,  449. 

V.  Pratt,  478. 

V.  Prescott,  1171. 

V.  Quincy,  173. 

V.  Spencer,  862. 
Frenkel  v.  Hudson,  1088. 
Frentz  v.  Klotsch,  399. 
Freshour  v.  Hihn,  1033. 
Fresm  Canal   &   Irrigation  Co.  v. 

Rowell,  751,  754.  1086. 
Fretsan  v.  Hay,  11. 
Fretton  v.  Karcher,  802. 
Freund  v.  McCall,  506,  507. 
Frey  v.  Allen,  213,  248. 

V.  Clifford,  882,  1092,  1094. 

V.  Drahos,  897. 

V.  Vanderhoof,  1252. 
Friedley  v.  Hamilton,  1178. 
Friedman  v.  Steiner,  193,  194. 
Friel  v.  People,  1033. 
Friend  v.  Oil  Well  Supply  Co.,  135. 
Pries  V.  New  York   &  H.   R.   Co., 

815. 
Frink  v.  Adams,  1178,  1180. 

V.  Le  Roy,  1200,  1240. 

V.  Murphy,  1241. 

V.  Pond,  924. 

V.  Roe,  614. 
Frique  v.  Hopkins,  1016. 
Frisbie  v.  Whitney,  834. 
Frisby  v.  Withers.  1017. 
Frische  v.  Kramer,  12G2,  1265. 
Frissell  v.  Rozier,  1146. 
Frith  V.  Osborne,  619. 
Fritsch  v.  Klansing,  640. 


Fritsche  v.  Fritsche,  730. 
Fritz  V.  Pusey,  906. 

V.  Tudor,  477. 
Frogmorton  v.  Holyday,  340. 

V.  Wharrey,  312. 
Front  V.  Hardin,  533. 
Fronty  v.  Godard,  620,  637,  638. 
Frost,  in  re,  356. 

V.  Angler,  907. 

V.  Beekman,  1083. 

V.  Berkeley     Phosphate     Co., 
653. 

V.  Cloutman,  07. 

V.  Courtis,  1001. 

V;  Earnest,  910. 

V.  Wolff,  921. 
Frothingham  v.  McCusick,  1213. 
Fry  V.  Breckenridge,  802. 

V.  Jones,  533. 

V.  Partridge,  857. 

V.  Smith,  1159. 
Frye  v.  Bank  of  Illinois,  1187. 

V.  Partridge,  763. 
Fryer  v.  Rockefeller,  1082. 
Fugate  V.  Pierce,  1001,  1008,  1016. 
Fuhr  V.  Dean,  684,  700,  920. 
Fuhrman  v.  London,  926. 
Fullenwider  v.  Longmoor,  1298. 
Fuller  V.  Arms,  185. 

V.  Conrad,  476. 

V.  Griffith,  1185. 

V.  Jillett,  904. 

V.  Rust,   478. 

V.  Shedd,  59tJ. 
Fullmer  v.  Poust,  1301. 
Fulmer's  Appeal,  391. 
Fulmer  v.  Williams,  595,  891. 
Fulper  V.  Fulper,  380. 
Fulton  V.  Mehrenfeld,  976,  979. 

V.  Norton,  544. 

V.  Stuart,  115. 
Fulweiler  v.  Baugher,  1145. 
Funk  V.  Eggleston,  50,  628. 

V.  Haldeman.  518,  745,  747. 

V.  Kincaid,  112. 

V.  McReynold,  1228. 

V.  Paul,  11)94. 

V.  Voneida.  904,  907,  914. 
Furbush  v.  Chappel,  803. 

V.  Goodwin.  1200. 
Furenes  v.  Mickelson,  1159. 
Furlong  v.  Garrett,  1013. 
Furman  v.  McMillan,  1317. 
Furnas  v.  Durgin,  1217. 
Furnish  v.  Rogers,  300. 
Furrow  v.  Athey,  1147. 


1372 


TABLE  OF  CASES. 


[EEFEBENCES   ABE   TO  PAGES.] 


Fuselier  v.  Buckney,  1124. 
Fyffe  V.  Beers,  1134. 

G. 

Gable  v.  Columbus  Cigar  Co.,  1111 

V.  Wetherholt,  122. 
Gaboury  v.  McGovern,  61. 
Gaffleld  v.  Hapgood,  549,  551. 
Gaffney  v.  Hicks,  1220. 

V.  Peeler,  502. 
Gafford  v.  Stearns,  1183,  1184. 
Gage  V.  Bissell,  407. 

V.  Gage,  393,  1001. 
Gaines  v.  Fender,  625. 

V.  Gaines,  444. 

V.  Green  Fond  Iron  Min.  Co., 
426,  561-563. 

V.  Poor,  444,  751,  752. 

V.  Summers,  1085,  1091. 
Gainsford  v.  Dunn,  638. 
Gaither  v.  Stockbridge,  110. 
Galbraith  v.  Lumsford,  584-586. 

V.  Reeves,  1295. 

V.  Tracy.  387. 
Gale  V.  Gould,  876. 

V.  Morris,  1284,  1285. 
Gallagher  v.  Dodge,  651,  652. 

V.  Shipley,  556,  557. 
Gallaher  v.  Herbert,  1279. 
Galley  v.  Ward,  1089. 
Galligar  v.  Payne,  1123. 
Galligher  v.  Smiley,  1126. 
Galloway  v.  Ogle,  1010. 
Galveston  v.  Menard,  592. 

V.  Williams,  737. 
Galway  v.  Mulchow,  1312. 
Gambell  v.  Trippe,  250,  621. 
Gamble's  Succession,  697. 
Gamble  v.  Horr.  1262. 

V.  Ross,   1283. 
Gammell  v.  Ernst,  61. 
Gammon  v.  Freeman,  443. 
Gamon  v.  Vernon,  796. 
Gandy  v.  Jubber,  146. 
Gann  v.  Free  Fishers  of  Whitsta- 

ble,  592,  828. 
Gannett  v.  Albree,  177. 
Gannon  v.  Hargadon,  664. 
Gano  V.  Nanderveer,  96,  97. 
Gans  V.  Thieme,  1248. 
Ganter  v.  Atkinson,  520. 
Garaty  v.  Du  Bose,  1124. 
Garbut  v.  Bowling,  450,  462. 
Gardenhire  v.  fcmith,  535. 


Gardenville  Permanent  Loan  Ass'n 

V.  Walker,  1280. 
Gardiner  v.  Derring,  566. 

V.  Guild,  305. 

V.  Tisdale,  972. 
Gardiner  Mfg.  Co.  v.  Heald,  403. 
Gardner  v.  Astor,  1252. 

V.  Baker,  511. 

V.  Cole,  1115,  1116. 

V.  Gardner,  919,  959,  960. 

V.  Greene,  438,  443. 

V.  Heartt,  1213. 

V.  Hooper,  307. 

V.  Ketettas,  97,  790,  909. 

V.  McClure,  1285. 

V.  Rowe,  224. 

V.  Samuels,  1286. 

V.  Webster,  720. 
Garibaldi  v.  Jones,  508,  509,  511. 
Garland  v.  Bostick,  506. 

V.  Furber,  729. 

V.  Towne,  650,  666. 

V.  Wells,  869. 
Garmire  v.  Willy,  758. 
Garner  v.  Byard,  106,  108,  789. 

V.  Wills,  495. 
Garnett,  in  re,  879. 

V.  Slater,  1028. 
Garnhart  v.  Finney,  178. 
Garnons  v.  Knight,  928-930. 
Garnsey  v.  Gothard,  225. 

V.  Rogers,  1220. 
Garrard  v.  Garrard,  463. 
Garrett  v.  Christopher,  861,  1091. 

V.  Clark,  148. 

V.  Dabney,  962. 

V.  Ramsey,  1017. 

V.  Weinberg,  1001. 
Garrison  v.  Rudd,  686. 

V.  Sampson,   1015. 
Garstang  v.  Davenport,  717. 
Garth  v.  Cotton,  579. 
Gartside  v.  Outley,  135,  1204,  1205. 
Garvin  v.  Garvin,  1310. 
Garwin  v.  Ingram,  1146. 
Garwood    v.    New   York    Cent.    & 
Hudson    River   R.    Co.,    656-658, 
661. 
Gasaway  v.  Woods,  507. 
Gaskell  v.  Viquesoey,  1203,  1215. 
Gaskill  V.  Sine,  1225. 
Gaskins  v.  Finks,  626. 
Gass  V.  Wilhite,  249. 
Gast  V.  Porter,  632. 
Gaston  v.  Portland,  934. 

V.  White,  1294. 


TABLE  OF  CASES. 


1373 


[refebences  are  to  pages.] 


Gatenby  v.  Morgan,  341. 
Gates  V.  Brooks,  582. 

V.  Salmon,  394. 

V.  Seibert,  353. 

V.  Sutherland,  1179. 
Gatewood's  Case,  824. 
Gatewood  v.  Gatewood,  493,  1241, 

1247. 
Gatson  v.  Mace,  827. 
Gault  V.  Hall,  860. 
Gaunt  V.  Wamman,  443. 
Gavin  V.  Carling,  1286. 
Gaw  V.  Huffman,  458,  459. 
Gawtrey  v.  Leland,  665. 
Gay  V.  Gay,  958,  959. 

V.  Gillilan.  952,  953. 

V.  Grant,  616. 

V.  Hervey,  1300. 
Gayheart  v.  Cornett,  584. 
Gaylord  v.  Lafayette,  224. 
Gear  v.  Barnum,  893. 
Gearhart  v.  Thorp,  867. 
Gebb  V.  Rose,  1146. 
Gebhardt  v.  Reeves,  194,  819,  979, 

980. 
Gee  V.  McMillan,  1287. 

V.  Moore,  506. 
Gear  v.  Connecticut,  600. 

V.  Durham  Water  Co.,  688. 
Gehlen  v.  Knord,  656. 
Gehman  v.  Erdman,  722. 
Geible  v.  Smith,  711. 
Geiger  v.  Filor,  597. 
General    Electric    Co.    v.    Transit 

Equipment  Co.,  537. 
General  Finance,  Mortgage  &  Dis- 
count   Co.     V.    Liberator,     etc., 
Bldg.  Soc,  1041. 
General   Ins.   Co.   of  Maryland   v. 

United  States  Ins.  Co.,  1078. 
Genesee  Chief  v.  Fitzhugh,  594. 
Genet  v.  Delaware  &  H.  Canal  Co., 
520. 

V.  Hunt,  647. 
Gent  V.  Harrison,  579. 
Gentile  v.  State,  600. 
Gentlemen  v.  Soule,  1033. 
George  v.  Andrews,  1218,  1219. 

V.  Kent,  1091. 

V.  Kimball,  1113. 

V.  Putney,  125. 

V.  Ransom,  384. 

V.  Wood.  1084,  1223,  1225. 
Georgia,  C.  &  N.  Ry.  Co.  v.  Scott, 
213. 


Georgia  Pine  Inv.   &   Mfg.  Co.  v. 

Holton,  1018. 
Gerber's  Estate,  349. 
Gerdine  v.  Menage,  1217,  1248. 
Gerenger  v.  Summers,  1025. 
German  v.  Chapman,  765,  770. 
German    Ins.    Co.    of    Freeport    v. 

Gibe,  1179. 
German  Mut.  Ins.  Co.  of  Indianap- 
olis V.  Grim,  1119. 
German  Sav.  &  Loan  Soc.  v.  De 

Lashmutt,    1154,    1155. 
Gerrish  v.  Black.  1202,  1206. 

V.  Clough,  1035. 

V.  Shattuck,  729. 
Getchell  v.  Benedict,  974. 
Gherson  v.  Brooks,  1004. 
Ghormley  v.  Smith,  1141. 
Gibbens  v.  Thompson,  175. 
Gibbons  v.  Dillingham,  93,  527. 
Gibbs  V.  Drew,  10. 

V.  Estey,  545,  546. 

V.  McGuire.  920. 

V.  Marsh,  620. 

V.  Swift,  377. 

V.  Thayer,  1045. 

V.  Williams,  664,  665. 
Gibson's  Case,  241. 
Gibson  v.  Brockway,  883. 

V.  Chouteau,    843,    845,    1005,. 
1045. 

V.  Cooke,  261. 

V.  Crehore.  43b,  436, 1203,  1241, 
1242. 

V.  Durham.  1028. 

V.  Gibson,   456. 

V.  Hammersmith    &    City  Ry. 
Co.,  549-552. 

V.  Hardaway.  194. 

V.  Herriott,  1046. 

V.  Holden,  118.  758,  761. 

V.  Kirk,  798,  799. 

V.  Mundell.  1130. 

V.  Soper,   1155. 

V.  United  States,  597. 

V.  Winslow,  399. 
Giddings  v.  Turgeon,  949,  950. 
Giffen  v.  Taylor,  235. 
Gifford  V.  Corrigan,  1219,  1221. 

v.  Dyer,  961. 

V.  Yarborough,  1034. 
Gilbert  v.  Cowan.  1121. 

V.  Holmes.  1191. 


1374 


TABLE  OF  CASES. 


[eefeeences  aee  to  pages.] 


Gilbert  v.  Knox,  947. 

V.  Reynolds,  466,  482. 

V.  Sanderson,  1219,  1221, 
Gilbertson  v.  Richards,  346. 
Gilclirist  v.  Brown,  231. 

V.  GoughL,  1083,  1094,  1184. 
Gilcrest  v.  Gottsclialk,  1304. 
Gilder  v.  Brenham,  978. 
Gildersleeve  v.  Hammond,  671. 
Giles  V.  Little,  170. 

V.  Miller,  1128,  1132,  1133. 

V.  Simonds,  683. 

V.  Warren,  957. 
Gilford  V.  Winnipiseogee  Lake  Co., 

722. 
Gill  V.  Atlantic  &  G.  W.  Ry.  Co., 
590. 

V.  De  Armant,  537. 

V.  Logan,  242. 

V.  Lydick,  1034. 

V.  Middleton,  103. 
Gillam  v.  Dixon,  380. 
Gillenwaters  v.  Campbell,  1150. 
Gillespie  v.  Bailey,  1147,  1149. 

V.  Broas,  193. 

V.  Rogers,  1083. 

V.  Worford,  498. 
Gillett  V.  Mathews,  123. 
Gillham  v.  Madison  County  R.  Co., 

663. 
Gillilan  v.  Smith,  452. 
Gilliland  v.  Fenn,  1115,  1116. 

V.  Gilliland,  232. 
Gillis  V.  Bailey,  179. 

V.  Brown,  429. 

V.  Gillis,  948. 

V.  Martin,  1207. 

V.  Nelson,  725. 
Gillison  v.  Savannah  &  C.  R.  Co., 

1073. 
Gilman  v.  Bell,  620,  643,  644. 

V.  Brown,  1279. 

V.  Hovey,  1306. 

V.  Illinois   &   Mississippi   Tel- 
egraph Co.,  1201,  1276. 

V.  Smith,  889. 
Gilmer  v.   Mobile   &   M.  Ry.   Co., 

752,  754,  756. 
Gilmor's  Estate,  954. 
Gilmore  v.  Armstrong,  681. 

V.  Burch,   492. 

V.  Driscoll,  668,  670,  1026,  1032. 

V.  Hamilton,  138. 

V.  Wilbur,  401. 
Gilpatrick  v.  Glidden,  234. 
Gilpin  V.  Hollingsworth,   377,  379. 


Gilpin  V.  Williams,  300. 
Gilson  V.  Gilson,  1189. 
Gilworth  v.  Cody,  1125. 
Gimon  v.  Davis,  934. 
Gindrat  v.  Montgomery  Gas  Light 
Co.,  627-629. 

V.  Western  Ry.  Co.,  247,  283. 
Gingrich  v.  Gingrich,  289. 
Girardin  v.  Lampe,  1082. 
Giselman  v.  Starr,  621. 
Gittings  V.  McDermott,  954. 

V.  Morale,  1009. 

V.  Nelson,  1174' 
Given  v.  Mary,  1251. 
Givens  v.  McCalmont,  1213. 

V.  Mullinax,  121,  124. 
Gladding  v.  Warner,  1203. 
Gladfelter  v.  Walker,  1029. 
Gladwell  v.  Holcomb,  146,  147,  155. 
Glasgow  V.  Baker,  823. 

V.  Hortig,   823. 
Glass  V.  Ellison,  1196. 
Glasscock  v.  Stringer,  1308. 
Gleason  v.  Burke,  1193. 

V.  Dyke,  1248. 

V.  Spray,  505. 
Glen  Mfg.  Co.  v.  Weston  Lumber 

Co.,  583. 
Glencoe  v.  Wadsworth,  1008. 
Glendenning  v.  Bell,  1089. 
Glenn  v.  ClarK,  425,  433,  449. 

V.  Spry,  1279. 
Glenorchy  v.  Bosville,  237. 
Glidden  v.  Bennett,  539. 

V.  Blodgett,  305. 
Globe  Ins.  Co.  v.  Lansing,  1277. 
Gloucester  v.  Gaffney,  823. 
Glover  v.  Condell,  358. 

V.  Fisher,   265. 

V.  Glover.  485,  506,  508. 

V.  Hill,  506,  510. 

V.  Mersman,  760. 

V.  Payn,  1189. 

V.  Stamps,  220. 

V.   Stillson,  302,  625. 
Gluck  V.  Baltimore,  126. 
Gluckauf  V.  Reed,  1046. 
Goad  V.  Montgomery,  641. 
Goddard  v.  Bolster,  553. 

V.  Hall.    799. 

V.  Winchell,  516. 
Godfrey  v.  Alton.  973. 

V.  Humphrey,  49. 

V.  Monroe,  1316. 

V.  Thornton.  506. 

V.  Watson.  1206. 


TABLE  OF  CASES. 


1375 


[references  aee  to  pages.] 


Godman  v.  Simmons,  307. 
Godolphin  v.  Godolphin,  613. 
Gee's  Estate,  1138. 
Goebel  v.  Thiene,  633. 
Goelz  V.  Goelz,  232,  233. 
Goff  V.  Anderson,  490. 

V.  Kilts,  600. 

V.  Pensenhafer,  628. 
Going  V.  Emery,  249,  615. 
Gold  V.  Ryan,  445. 
Gold  Hill  Quartz  Min.  Co.  v.  Ish, 

518. 
Golder  v.  Bressler,  244,  624. 
Goldin  V.  Lakeman,  884. 
Goldsborough  v.  Martin,  354. 
Goldschmid  v.  Starring,  712,  760. 
Goldthwaite  v.  First  Nat.  Bank  of 
Montgomery,  1231. 

V.  Janney,  388. 
Gomber  v.  Hackett,  178. 
Gonzales  v.  Wasson,  69r. 
Gooch  V.  Atkins,  470. 

V.  Botts,   1206. 
Good  V.  Fichthorn,  1136. 
Goodall  V.  Godfrey,  709,  713. 

V.  Mopley,  1263,   1264. 
Goode  V.  St.  Louis,  821. 
Goodell  V.  Blumer,  1312. 
Goodenow  v.  Allen,  139. 

V.  Eiver,  398,  1258. 
Goodfellow  V.  Riggs,  974. 
Goodhart  v.  Hyett,  725. 
Goodhue  v.  Barnwell,  404. 
Gooding  v.  Riley,  545,  1171. 

V.  Shea,   1212,   1213. 
Goodkind  v.  Bartlett,  467. 
Goodman  v.  Hannibal  &  St.  J.  R. 
Co.,  542. 

V.  Randall,  919,  1175. 

V.  Saltash,  162,  251,  824. 

V.  White,  1265. 

V.  Wineland,  1112. 
Goodnow  V.  Empire  Lumber  Co., 

1150. 
Goodrich  v.  Burbank,  686. 

V.  Harding,  280. 

V.  Jones,  544,  545,  555,  557. 
Goodright  v.  Barrow,  50. 

V.  Cater,  181. 

V.  Cornish,  294,  304. 

V.  Davids,  178. 

V.  Dunham,  288. 

V.  Glazier,  967. 

V.  Searle,  342. 

V.  Vivian,  574. 

V.  Wells,  246. 


Goodright  v.  Wright,  311. 
Geedrum  v.  Geodrum,  458. 
Goedseirs  Appeal,  962,  964. 
Goodsen  v.  Brothers,  1008. 

V.  Ellison,  247. 
Goodspeed  v.  Fuller,  877. 
Goodtitle  v.  Alker,  810. 

V.  Bailey,  862,  104L 

V.  Billington,  326. 

V.  Gibbs,  871. 

V.  .Jones,  219. 
Goodwin  v.  Clark,  356. 

V.  Colorado  Mortgage  Inv.  Co. 
of  London,  1131. 

V.  Goodwin,  84,  429. 

V.  Keney,   1251. 

V.  Massachusetts       Loan      & 
Trust  Co.,  1094. 

V.  White,  877. 
Goodyear  v.  Goodyear,  1249. 
Goralski  v.  Kostuski,  400. 
Gordon  v.  Adolphus,  291. 

V.  Cummings,  105. 

V.  Dickison,  422. 

V.  Gordon,  633. 

V.  Haywood,  869. 

V.  Lewis,  1203. 

V.  San  Diego,  394. 

V.  Stevens,  453. 

V.  Whitlock,  960. 
Gore  V.  Brazier,  477,  913. 

V.  Dickinson,  406. 

V.  Gore,  324,  327.  •* 

Gorges  v.  Webb,  302. 
Gorham  v.  Daniels,  205,  281. 

V.  East  Chester  Electric  Co., 
898. 

V.  Gross,  760. 
Goring  v.  Shreve,  1195. 
Gorman  v.  Pacific  R.  Co.,  588. 

V.  Wood.  1097. 
Gorton  v.  Hadsell,  698. 
Goshorn  v.  Steward,  798. 
Gosling  v.  Warl)urton,  453. 
Gossam  v.  Donaldson,  1013. 
Gosselin  v.  Chicago,  939. 
Gossenheimer  v.  Molton,  1195. 
Gosson  V.  Ladd,  247,  620,  621. 
Gott  V.  Powell,  1261. 
Gotzian,  In  re,  454,  459. 
Goudy  V.  Goudy,  751. 
Gough  V.  Bell,  591. 
Gould's  Will,  In  re,  968. 
Gould  V.  Boston  Duck  Co.,  657,  659. 

V.  Carr.  1000. 

V.  Day.  931. 


1376 


TABLE   OF   CASES. 


[KEFEEENCES    ABE   TO   PAGES.] 


Gould  V.  Eastern  R.  Co.,  894,  897. 

V.  Eaton,  661. 

V.  Hudson  River  R.  Co.,  597. 

V.  Lamb,  47. 

V.  Lynde,  228,  877. 

V.  Mather,  623. 

V.  Murch,  265. 

V.  Newman,  1263. 

V.  Partridge,  764. 

V.  Stafford,  657. 

V.  Thompson,  139. 

V.  Winthrop,  1245. 

V.  Womaclv,  463. 
Goulding  v.  Clark,  823. 
Gourdin  v.  Deas,  292. 
Gourley  v.  Woodbury,  305. 
Gouverneur   v.   National   Ice    Co., 

596,  598,  891. 
Gove  V.  Richardson,  584. 
Governeur  v.  Robertson,  1158. 
Gowan  v.  Christie,  520,  774. 

V.  Philadelphia  Exchange  Co., 
680. 
Gower  v.  Doheney,  1097. 
Grabenhorst  v.  Nicodemus,  129. 
Graber  v.  Duncan,  757. 
Grable  v.  McCulloh,  1169. 
Grace  v.  Wade,  1313. 
Grace  Methodist  Episcopal  Church 

V.  Dobbins,  710,  711,  1029. 
Grady  v.  McCorkle,  444,  448. 
Graeff  v.  De  Turck,  616,  637. 
Graff  V.  Fitch,  531. 
Grafton   v.   Moir,   874. 
Gragg  V.  Martin,  1111. 
Graham  v.  Anderson,  926. 

V.  Burch,  879,  966. 

V.  Dempsey,  152. 

V.  Graham,  461,  462. 

V.  Hartnett,  1033. 

V.  King,  619. 

V.  Law,  465. 

V.  McCampbell,  1294. 
Grammar  School  in  Ipswich  v.  Pro- 
prietors  of   Jeffrey's   Neck   Pas- 
ture, 715,  721. 
Grand  Junction  Canal  Co.  v.  Shu- 
gar,  667. 
Grand  Rapids  Ice  Co.  v.  South  G. 

R.  Ice  Co.,  596. 
Grand  Rapids  &  I.  R.  Co.  v.  Heisel, 

812,  894. 
Grand  Tower  Min.  &  C.  Co.  v.  Gill, 

390. 
Grandona  v.  Loodal,  515,  532. 
Grandville  v.  Jenison,  979. 


Granger  v.  Crouch,  1229. 

V.  Roll,  1218. 
Grant's  Appeal,  804. 
Grant  v.  Bennett,  862,  1306. 

V.  Bissett,  1243. 

V.  Chase,  703. 

V.  Duane,  1241. 

V.  Lynam,  630. 

V.  Moon,  894. 

V.  Parham,  469. 

V.  Strong,  1304. 

V.  White,  153,  155,  892. 
Grantham  v.  Hawley,  1174. 
Grapengether    v.    Fejervary,    1228. 
Gratrex  v.  Homlray,  211. 
Gravemeyer  v.  Southern  Mut.  Fire 

Ins.  Co.,  1209. 
Graves  v.  Atwood,  32^. 

V.  Berdan,  136,  691,  726. 

V.  Cochran,  472. 

v.  Deterling,  163. 

V.  Dolphin,  1141. 

V.  Graves,  228,  1081. 

V.  Smith,  692,  693,  726,  728. 

V.  Trueblood,  491. 

V.  Weld,  522,  523. 
Gray  v.  Bailey,  383. 

V.  Blanchard,  172,  176,  185. 

V.  Coan,  1076. 

V.  Gillespie,  1199. 

V.  Givens,  402. 

V.  Harris,  660. 

V.  Lynch,  244,  612,  624. 

V.  McWilliams,  663,  678. 

V.  Mathias,  1191. 

V.  Patton.  1315. 
Graydon  v.  Graydon,  170. 
Grayson  v.  Tyler,  307. 
Great   Falls   Co.    v.    Worsier,   394, 

1089. 
Great  Falls  Waterworks  v.  Great 

Northern  Ry.  Co.,  682. 
Greatrex  v.  Hayward,  1030. 
Greaves,  in  re,  255. 
Green's  Case,  178. 
Green  v.  Armstrong.  530. 

V.  Arnold,  395. 

V.  Butler.  1215. 

V.  Carotta,  665. 

V.  Cole,  575,  576. 

V.  Creighton,  763. 

V.  Crow,  508. 

V.  Davidson,  622. 

V.  Elliott,  978. 

V.  Farrar,   1131. 

V.  Garrington,   1082. 


TABLE  OF  CASES. 


1377 


[befebences  .vbe  to  pages.] 


Green  v.  Goff,  729. 

V.  Green,  312,  313,  1149,  1151. 

V.  Hall,  1217.  1218. 

V.  Hart,  1227. 

V.  Hewitt.  291. 

V.  Irving.  91U,  911. 

V.  James,  112. 

V.  Jordan,  219. 

V.  Liter,  422. 

V.  Phillips,  540. 

V.  Redding.  792. 

V.  Rick,  1099. 

V.  Stephens,  256. 

V.  Stone,  1217. 

V.  Turner,     1012,     1217,    1221, 
1240. 

V.  Westcott,  1203. 

V.  Wilding,  1147. 

V.  Williams,  91. 

V.  Winter,  241. 
Greenby  v.  Wilcocks,  902,  915. 
Greene  v.  Anglemire,  1014. 

V.  Canny,  719. 

V.  Creighton.  906. 

V.  Dennis,  226. 

V.  Greene,  246,  442. 

V.  O'Connor,  163. 

V.  Reynolds,  431. 

V.  Warnick.  i232. 
GreenHill  v.  Biggs,  1009. 
Greenholtz  v.  Haeffer,  417. 
Greenleaf  v.  Allen,  797. 

V.  Francis.  667. 
Greenman  v.  Greenman,  1125. 
Greenmount    Cemetery    Co.'s    Ap- 
peals, 728. 
Greeno  v.  Barnard,  1292. 
Greenough  v.  Greenough,  945. 

V.  Turner,  866.  1132. 

V.  Welles,    247.    606,    612.    613, 
620. 
Greenwault  v.  Davis,  127,  910. 
Greenway  v.  Cannon,  1311. 
Greenwell  v.  Heritage,  1248. 
Greenwood  v.  Coleman,  1149. 

V.  Maddox,  1122.  1123. 

V.  Marvin,  442. 
Greenwood  Lake  &  P.  J.  R.  Co.  v. 

New  York  &  G.  L.  R.  Co.,  687. 
Greer  v.  Blanchar,  375. 

V.  Higgins,  1085. 

V.  Van    Meter,    687,    706,    711, 
713. 

V.  Wintersmith,  1119. 
Gregg  V.  Blackmore,  403. 

V.  Bostwick,  112.5,  1126. 
Real  Prop.— 87. 


Gregor  v.  Cady,  102,  103. 
Gregory  v.  Bush,  664,  689. 

V.  Ellis,  5i2. 

V.  Gregory,  473. 

V.  Savage,  1086. 
Gregson,  in  re,  337. 
Greider's  Appeal,  853. 
Greiner  v.  Kiein,  441,  468. 
Gresham  v.  Chambers,  882. 

V.  King,  382. 

v.  Ware,  1251. 
Grether  v.  Clark,  1012. 
Grave  v.  Coffin,  1230. 
Greville  v.  Brown,  1281. 
Grey  v.  Cuthbertson,  112,  119. 
Gribben  v.  Maxwell,  1155. 
Grice  v.  Scarborough,  906,  908. 
Grider  v.  American  Freehold  Land 
Mortg.  Co.,  926,  927. 

V.  Eubanks,  461. 
Gridley  v.  Bingham,  11J.3. 

V.  Bloomington,  104. 

V.  Wynant,  226. 
Grier  v.  Rhyne,  1316. 
Griffin  v.  Bixby,  532. 

V.  Griffin,  633. 

V.  Kniseley,  89. 

V.  Lee,  1018. 

V.  Lovell,  1264. 

V.  Lowell,  1236. 

V.  Marine  Co.  of  Chicago,  1198, 
1199,  1272. 

V.  New  Jersey  Oil  Co.,  1186. 

V.  Shepard,  342. 
Griffith  V.  Diffenderfer,  953. 

V.  Griffith,  1099. 

V.  Lewis,  146. 

V.  Pritchard.  1161. 

V.  Ricketts.  258,  264. 

V.  Landis,  178,  187. 
Griggs  V.  Smith,  422,  423. 
Grigsby  v.  Breckenridge,  333,  334. 

V.  May,   1018. 

V.  Peak,  404. 
Grim  v.  Murphy,  1014. 
Grimball  v.  Patton,  497. 
Grimes  v.  Portman,  1132. 

V.  Ragland.  1008,  1018. 

V.  Shirk,  313,  314. 
Grlmley  v.  Davidson.  593,  728. 
Grimm  v.  Titman,  947. 
Grimman  v.  Legge,  855. 
Grimmer  v.  Friederirh,  290,  337. 
Grissom  v.  Moore.  442,  444. 
Grist  V.  Hodges,  911. 
Griswold  v.  Butler.  1005,  1153. 


1378 


TABLE  OF  CASES. 


[KEFEBENCES    ABE   TO   PAGES.] 


Griswold  v.  Jolinsou,  377. 
Gfoff  V.  Rohrer,  228,  877. 
Grogan  v.  Garrison,  461,  463. 

V.  Hayward,  977. 
Gromie  v.  Home    Society,  1158. 
Grommes   v.    St.    Paul   Trust    Co., 

109,   134,  782,   790. 
Grosholz  V.  Newman,  1125. 
Grosvenor  v.  Bowen,  648. 
Grove  v.  Todd,  451,  452. 
Grover  v.  Flye,  1235. 
Groves'  Appeal,  1305. 
Groves  v.  Cox,  302. 
Grubb  V.  Bayard,  745. 

V.  Burlington,  561. 

V.  Grubb,  742. 
Grube  v.  Nichols,  975,  978. 

V.  Wells,  1014. 
Gruing  v.  Richards,  879. 
Grundin  v.  Carter,  124. 
Grundres  v.  Raid,  1091. 
Grymes  v.  Boweren,  549. 
Guarantee  &   Trust  Co.  v.  Jones, 

629. 
Guerin  v.  Moore,  476. 

V.  Smith,  916. 
Guernsey  v.  Kendall,  1217. 
Guesnard  v.  Bird,  664. 
Guest  V.  Beeson,  1153. 

v.  Farley,  215. 

V.  New   Hampshire   Fire   Ins. 
Co.,  1208. 

V.  Opdyke,  534. 

V.  Reynolds,  651,  1031. 
Guffey  V.  O'Reilley,  1045. 
Guggenheimer  v.  Lockridge,  935. 
Guidet  V.  Brown,  450. 
Guild  V.  Richards,  164,  178. 
Guilfoil  V.  Arthur,  250. 
Guion  V.  Anderson,  489,  498,  500. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Cusen- 
berry,  998. 

V.  Dunman,  181. 

V.  Eddins,  803,  815. 

V.  Helsley,  665. 

V.  Settegast,  178. 
Gullett  Gin  Co.  v.  Oliver,  1307. 
Gully  V.  Ray,  433. 
Gunn's  Appeal,  1177. 
Gunn  V.  Barry,  1131. 

V.  Brown,  247. 

V.  Scovil,  1119. 

V.  Sinclair,  148,  791. 
Gunning  v.  Carman,  76. 
Gunson  v.  Healy,  725. 
Gunter  v.  Laffan,  399. 


Gunter  v.  Williams,  910. 
Gunterman  v.  People,  11. 
Guthmann  v.  Vallery,  131,  135. 
Guthrie's  Appeal,  60,  70. 
Guthrie  v.  New  Haven,  977. 

V.  Russell,  914. 
Gutman  v.  Buckler,  624. 
Guy  V.  De-  Uprey,  1249. 
Guyer  v.  Maynard,  606,  613. 

V.  Stratton.  694. 
Gwan  V.  Tout,  859,  860. 
Gwynn  v.  Jones,  1011. 

V.  Schwartz,  583,  585. 
Gwynne  v.  Cincinnati,  444,  467. 


H. 


Haas    V.    Chicago    Building    Soc, 
1201,  1202. 

V.  Choussard,  1029. 
Hach  V.  Hill,  416. 
Hacker's  Appeal,  626,  922. 
Hackett  v.  Reynolds,  1285. 

V.  Ruggles,  1301. 

V.  Watts,  1283,  1285. 
Hackney  v.  Tracy,  358. 
Hackworth  v.  Artificial  Stone  Co., 

74. 
Hadden  v.  Knickerbocker,  803. 
Hadley  v.  Geiger,  1120. 

V.  Hadley,  624. 

V.  New    Hampshire    Ins.    Co., 
1209. 

V.  Stewart,  1207. 
Hadlock  v.  Gray,  380. 
Haeussler    v.    Missouri    Iron    Co., 

406. 
Hafer  v.  Hafer,  509. 
Haffey  v.  Carey,  1189. 
Hafner  v.  Irwin,  872. 
Hafter  v.  Strange,  1089. 
Hagaman  v.  Dittmar,  972. 
Hagan  v.  Campbell,  1034. 
Hager  v.  Nixon,  507. 
Hagerman  v.  Buchanan,  1112. 
Hagerty  v.  Lee,  876. 
Hagey  v.  Detweiler,  584. 
Haggard  v.  Rout,  436. 
Haggerty  v.  Lee,  704,  705.  750.  874. 

V.  Powers,  232,  233. 

V.  Varney,  75,  76. 

V.  Walker,  1262,  1267. 
Hagar  v.  Brainerd,  1171. 

V.  Buck,  187. 
Hagardene  v.  Whitfield,  1121.  1125. 


TABLE  OP  CASES. 


137<J 


[references  are  to  pages.] 


Hague  V.  Hague,  59,  60. 

V.  Jackson,  1267. 

V.  Wheeler,  515. 
Hahn's  Appeal,  1302. 
Hahn  v.  Baker  Lodge,  732,  733. 

V.  Dawson,  1036. 

V.  Garratt,  588. 

V.  Hutchinson,  1137,  1140. 
Haigh  V.  Kaye,  235. 
Haight  V.  Hall,  497. 
Hall  V.  Reed,  519. 
Haines  v.  Beach,  1262. 

V.  Ellis,  497. 

V.  Hall,  827. 
Haire  v.  Baker,  908. 
Hale  V.  Darter,  1119. 

V.  Hale,  616,  631. 

V.  James,  474,  476,  477. 

V.  McLea,  668. 

V.  Oldroyd,  737. 

V.  Peck,  1255. 

V.  Thomas,  580. 

V.  Woods,  938. 
Haley  v.  Amestoy,  882. 

V.  Colcord,  721. 
Halifax     Congregational     Soc.     v. 

Stark,  194. 
Hall's  Case,  453. 
Hall  V.  Ashby,  852. 

V.  Baltimore,  974. 

V.  Bliss,  1269. 

V.  Butterfield,  1152. 

V.  Chaffee,  306,  341. 

V.  Congdon,  231. 

V.  Crocker,  1319. 

V.  Dean,  904. 

V.  Denckla,  1255. 

V.  Eaton,  888. 

V.  Geyer,  758. 

V.  Gittings,  1005. 

V.  Gould,  134,  790. 

V.  Hall,  233,  335,  352,  952,  998, 
1001,  1215. 

V.  Harris,  932. 

V.  Hill,  456. 

V.  Huggins,  1266. 

V.  Kauffman.  978. 

V.  La  France  Fire  Engine  Co., 
283,  307. 

V.  Lance,  1197. 

V.  Lawrence,     742,     743,     747, 
748. 

V.  Leonard,  867. 

V.  Lund,  713. 

V.  McDuff,  1285. 

V.  McLeod,  715,  973. 


Hall  V.  .Mobile  &  M.  Ry..  1217. 

V.  xMorgan,   1222. 

V.  Myers,  152,  154,  155. 

V.  Nute,  290. 

V.  Otis,  332. 

V.  Palmer,  333. 

V.  Parker,  1300. 

V.  Piddock,  396,  397. 

V.  Powel,  1017. 

V.  Preble,  G29. 

V.  Priest,  302. 

V.  Savage,  451. 

V.  Stephens,  380,  381. 

V.  Towne,  1271,  1272. 

V.  Tunnell,  1169. 

V.  Turner,  37,  194. 

V.  Vandegrift,  58,  59. 

V.  Wadsworth,  148. 

V.  V/allace,  139. 

V.  Waller,  1180. 

V.  Warren,  340. 

V.  Webb,  1005. 

V.  Westcott,  1198,  1203. 
Halle  V.  Newbold,  906. 
Hallen  v.  Runder,  550,  552,  553. 
Hallett  V.  Hallett,  426. 
Halligan  v.  Wade,  128,  130,  786. 
Hallowell  v.  Hallowell,  946. 
Hallum  V.  Silliman,  631. 
Halsey  v.  Goddard,  360. 

V.  McCormick,  892,  1037. 
Ham  V.  Kendall,  543. 
Hambrick  v.  Russell,  1267. 
Hambro  v.  Hambro,  805. 
Hamby  v.  Wall,  392. 
Hamer  v.  Knowles,  670. 
Hamerton  v.  Rogers,  1245. 

V.  Stead,  854. 
Hamilton  v.  Bishop,  414. 

V.  Buckwalter,  455. 

V.  Cutts,  127.  910. 

V.  Dennison,  731. 

V.  Dobbs,  1263. 

V.  Elliott,  174,  181. 

V.  Feary,  99,  103. 

V.  Foster,  888. 

V.  Hughes.  433. 

V.  Kneeland,  183. 

V.  Marsden,  125. 

V.  Miller,  255. 

V.  Mound  Citv  Mut.   Life  Ins. 
Co.,  638. 

V.  Nutt,  1091. 

V.  Russel,  1114. 

V.  Smith,  1281. 

V.  Worley.   1246. 


1380 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Hamilton  v.  Wright,  98.  1120. 
Hamlin  v.  Fletcher,  950. 

V.  Pairpont  Mfg.  Co.,  893,  894. 

V.  Thomas,  632. 
Hammock  v.  Creekmore,  534. 
Hammond  v.  Barker,  1247. 

V.  Port   Royal   &   A.   Ry.   Co., 
173,   181. 

V.  Putnam,  256,  258. 

V.  Schiff,   702. 

V.  Thompson,  779,  784. 

V.  Woodman,  725. 

V.  Zehner,  1029. 
Hammonds  v.  Hopkins,  1255. 
Hammons  v.  Peyton,  1290. 
Hampson  v.  Bdelen,  266,  1310. 
Hampton  v.  Cook,  502. 

V.  Holman,  304. 

V.  Nicholson,  632. 

V.  Rather,  311. 

V.  Spencer,  225. 
Hanby  v.  Henritze,  511. 
Hancock  v.  Beverly,  1093. 

V.  Carlton,  187. 

V.  Hancock,  1267. 

V.  Henderson,    1315. 

V.  McAvoy,  699,  730. 

V.  Philadelphia,  896,  975. 

V.  Titus,  334. 
Hancox  v.  Fishing  Ins.  Co.,  1209, 
Hand  v.  Marcy,  256,  263,  954. 

V.  Winn,  1132. 
Handlan  v.  McManus,  1032. 
Handley  v.  Wrightson,  222. 
Hanford  v.  St.  Paul  &  D.  R.  Co., 

597,  598. 
Hanks  v.  Enloe,  393. 
Hanley  v.  Wood.  745. 
Hanlon  v.  Dougherty,  1251. 

V.  Pollard,  1125. 
Hanly  v.  Morse,  1089. 
Hanna  v.  Hawes,  312. 

V.  Ladewig,  628, 
Hannah  v.  Carrington,  1250. 

V.  Carver,  397. 

V.  Swarnet,  928. 
Hannan  v.  Hannan,  1185. 
Hannay  v.  Thompson,  1179. 
Hannefin  v.  Blake,  1028. 
Hannen  v.  Ewalt,  117,  782. 

v.  Pence,  104. 
Hannibal  v.  Draper,  972. 
Hannibal  &  St.  J.  R.  Co.  v.  Short- 
ridge,  1286. 
Hannon  v.  Christopher,  306. 


Hanold  v.  Kays.  1094. 
Hanrahan  v.  O'Reilly,  550. 
Hanrick  v.  Patrick,  1045. 
Hansen  v.  Meyer,  119. 
Hansford  v.  Chesapeake  Coal  Co., 
878. 

v.  Elliott,  337. 
Hanson  v.  Campbell,  894. 

V.  Little  Sisters  of  the  Poor, 
1158. 

V.  McCue,  667,  1030. 
Hapgood  V.  Blood,  1211. 

V.  Houghton,  162. 
Haps  V.  Hewitt,  823. 
Harbison  v.  Lemon,  1153,  1177. 

V.  Vaughan,  1123. 
Harcum  v.  Hudnall,  258,  259. 
Hardage  v.  Stroope,  317. 
Hardaker  v.  Moorhouse,  642. 
Hardenburgh  v.  Hardenburgh,  379- 

382. 
Hardin  v.  Boyd,  1294. 

V.  Forsythe,  124. 

v.  Hardin,  867,  1201,  1202. 

V.  Jordan,  596,  891. 
Harding  v.  Alden,  464. 

V.  Glyn,  222. 
Hardy  v.  De  Leon,  1160. 

V.  Galloway,  1136. 

v.  Memphis,  980. 
Hare  v.  Burges,  354. 

V.  Celey,  534. 

V.  Murphy,  1220. 
Hargrave  v.  King,  107. 
Hargreaves,  In  re,  346. 
Haring  v.  Van  Houten,  586,  889. 
Hariston  v.  Haristgn,  961. 
Harker  v.  Christy,  470. 
Harkins  v.  Coalter,  414. 
Harkness  v.  Sears,  546,  550. 
Harkreader  v.  Clayton,  932. 
Harlan  v.  Eilke,  233. 

V.  Seaton,  1093. 
Harlow  v.  Fiske,  890. 

V.  Lake  Superior  Iron  Co..  562, 
745,  747. 

V.  Marquette,  H.  &  O.  R.  Co., 
679. 
Harmon  v.  Harmon,  680. 

V.  James,  389,  882. 

V.   Smith,  641,  1281. 
Harnett  v.  Maitland,  571,  572. 
Harnickell  v.  Orndorff,  1270. 
Harpending   v.    Reformed   Protes- 
tant Dutch  Church,  998. 
Harper's  Appeal,  1206,  1207. 


TABLE    OF   CASES. 


l.vSl 


[KEl'EKEiS'CES    ABE   TO   PAtiES.] 


Harper  v.  Clayton,  471. 

V.  Ely,  1205,  1206. 

V.  State,  1033. 
Harral  v.  Leverty,  1089. 
Harrall  v.  Gray,  1317. 
Harrell  v.  Haunum,  744. 

V.  Houston,  583. 

V.  Miller,  530. 
Harrelson  v.  Sarvis,  920. 
Harrer  v.  Wallner,  383. 
Harriman  v.  Gray,  468,  1045. 

V.  Park,  694. 
Harrington  v.  Dill,  341. 

V.  Murphy,  469. 

V.  "Watson,  136. 
Harriot  v.  Harriot,  429. 
Harris  v.  Bannon,  1213. 

V.  Carson,  524,  825. 

V.  Dozier,  701. 

V.  Elliott,   819,  897. 

V.  Frank,  120,  781,  796. 

V.  Frink,  138,  139,  143,  525. 

V.  Hanie,  1288. 

V.  Harris,  959. 

V.  Heackman,  109. 

V.  Hiscock,  854. 

V.  Hooker,  1265. 

V.  Howell,  2B5,  328. 

V.  McElroy,  297. 

V.  McGovern,  1004. 

V.  Mclntyre,  1090. 

V.  Miller,  701. 

V.  Mills,  1256. 

V.  Pepperell,  878. 

V.  Ryding,  691. 

V.  Scovel,  544. 
Harrison  v.  Augusta  Factory,  819. 

V.  Boyd,  471. 

V.  Des    Moines   &   Ft.   D.   Ry. 
Co.,  905. 

V.  Eldridge.  1237. 

V.  Foote,  169,  191. 

V.  Foreman,  286. 

V.  Forth,  1095. 

V.  Good,  650. 

V.  Griffith,  434. 

V.  Harrison,  167,  169. 

V.  Payne,  474,  475. 

V.  Peck,  472. 

V.  Ray,  382. 

V.  Ricks,  800. 

V.  Roberts,  1199. 

V.  Rutland,  809. 

V.  Simons,  866. 

V.  Weatherby,  299. 

V.  Wyse,  1201. 


Harrison    County    Sup'rs   v.    Seal, 

977. 
Harrisons  v.  Harrison,  222. 
Harrod  v.  Myers,  497,  1148,  1150. 
Harrop  v.  Hirst,  673. 
Harrow  School  v.  Alderton,  560. 
Harsha  v.  Reid,  754. 
Harshaw  v.  Dobson,  879. 
Harshberger  v.  Carroll,  322. 
Hart  V.  Bayliss,  212. 
V.  Burch,  473,  1261. 
V.  Chase,  493. 
V.  Chesley,  169. 
V.  Farmers'      &       Mechanics' 

Bank.  1317. 
V.  Gregg,  390. 
V.  Logan,  433. 
V.  McCollum,  469. 
V.  Sansom,  245. 
V.  Seymour,  211,  355. 
V.  Windson,  99. 
Harter  v.  Evans,  728. 
Hartman  v.  Frick,  729. 

V.  New  York  &  N.  E.  R.  Co., 

975,  978. 

Hartford  Steam  Boiler  Inspection 

&   Ins.   Co.   V.   Lasher  Stocking 

Co.,  1208. 

Hartford  &  S.  Ore  Co.  v.  Miller, 

394,  395. 
Hartley's  Appeal.  614. 
Hartman  v.  Frick,  729. 

V.  Strickler,  953. 
Hartshorn  v.  Cleveland,  914. 
Hartshorne  v.  Boorman,  450. 
Hartson  v.  Elden.  362,  1139. 
Hartung  v.  Witte,  584.  751,  758. 
Harty  v.  Doyle,  638. 

V.  Ladd,  926. 
Harvard  College  v.  Balch,  289.  630. 
Harvey's  Estate,  In  re,  644. 
Harvey  v.  Alexander.  469. 
V.  Crane,  728. 
V.  Edens,  882. 
v.  Gardner,  224. 
V.  McGrew.  113. 
V.  Tarvey,  571. 
v.  Walters.  733. 
Harvill  v.  HoUoway,  440. 
Harwell  v.  Fites,  1195. 

V.  Lively,  968. 
Harwood  v.  Benton,  905. 
V.  Goodright,   942. 
V.  Tompkins.  651. 
Haskell  v.  Bailey.  1255. 
v.  House,  613. 


1382 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Haskins  v.  Lombard,  920. 
Haslage  v.  Kriigh,  779. 
Haslem  v.  Lockwood,  557. 
Hassam  v.  Barrett.  1181. 

V.  Hazen,  631. 
Hasselman  v.  Allen,  479. 
Hastle  V.  Kelley,  1126. 
Hasting  v.  Livermore,   674. 
Hastings  v.  Crunckleton,  565. 

V.  Stark,  889. 

V.  Vaughn,  922. 
Hatch,   in  re.,   456. 

V.  Brier.  883. 

V.  Hatch.  933,  934. 

V.  Kimball,  1045. 

V.  Palmer,  436. 

V.  White,  1258,  1259. 
Hatcher  v.  Briggs,  1286. 
Hatchett  v.  Blanton,  388. 

V.  Hatchett.  617,  637. 
Hatfield's  Case.  207. 
Hatfield  v.  Fullerton,  790,  801. 

V.  Sneden,  502. 
Hathaway  v.  Evans,  585. 

V.  Payne.  933. 

V.  Wilson,  592. 
Hatorff  V.  W^ellford.  507. 
Haugh's  Appeal,  668. 
Haughwont  v.  Murphy,  264. 
Hauk  V.  McComas,  403. 
Hauxhurst  v.  Lobree,  131,  149. 
Haven  v.  Emery,  543. 

V.  Kramer,  933. 

V.  Mehlgarten,  398. 
Havens  v.  Sea  Shore  Land  Co.,  46, 

289,  307,  852,  871. 
Haverstick  v.  Sipe,  1031. 
Hawes,  Appeal,  1316. 
Hawes  v.  Chaille,  1289. 

v.  Dehon,  1246. 

v.  Nicholas,  968. 
Hawke  v.  Enyart,  169. 
Hawkins  v.  Bohlmg,  277,  333. 

V.  Chapman.  47. 

V.    Clermont,  1190. 

V.  Files,  1319. 

V.  Hawkins,  949. 

Y.  Sanders.  651. 

V.  Skegg,  523. 
Hawley  v.  Bradford,  435,  447. 

V.  James,  229,  256,  262,  263. 

V.  Northampton.  67. 

V.  Smith,  614. 
Hawlin  v.  Parsons,  1213. 
Hawthorne  v.  East  Portland,  1321. 
Hay  v.  Mayer.  491. 


Hayden    v.    Connecticut   Hospital, 
251. 

V.  Merrill,  393. 

v.  Moffatt,  1082. 

V.  Peirce,  497. 

V.  Stone,  973,  976. 

V.  Stoughton,    166,    173,    174, 
183. 
Hayes  v.  Bickerstaff,  909. 

V.  Bowman,  595. 

V.  Davis,  931. 

V.  Fessenden,  1301. 

V.  Hayes,  961. 

V.  Kingdome,  227. 

V.  Livingston,  1048. 

V.  Parker,  1148. 

V.  Tabor,  290,  306. 

V.  Waldron,  657,  659. 

V.  Waverly  &  P.  Ry.,  763,  769. 
Hayford  v.  Spokesfield,  736. 
Haymaker's  Appeal,  1111. 
Hayner  v.  Eberhardt,  1094. 

V.  Smith,  127,  128,  792. 
Haynes  v.  Aldrich,  156. 

V.  Boardman,  1002. 

V.  Bourn,  44,  492. 

V.  Jones,  1317. 

V.  Powers,  480. 

V.  Wells,  11. 
Haynie  v.  Dickens,  458. 
Hays'  Appeal,  260. 
Hays  V.  Doane,  547. 

V.  Hall,   1283. 

V.  Regar,  1312. 
Hay  ward  v.  Angell,  188. 

V.  Kinney,  71. 

V.  Peavey,  257. 
Haywood  v.  Brunswick  Permanent 
Benefit  Building  Soc,  764. 

V.  Ensley,  224. 

V.  Nooney,  1314. 
Hazard  v.  Robinson,  673,  1258. 
Hazel  v.  Hagan,  625,  641. 
Hazelett  v.  Farthing,  510. 
Hazeltine  v.  Case,  659. 
Hazen  v.  Barnett,  404. 
Hazlett  V.  Powell,  126. 

V.  Sinclair,  753-755,  1091. 
Heald  v.  Builders'  Mut.  Fire  Ins. 
Co.,  534. 

V.  Heald,  345. 
Healey  v.  Babbitt,  819. 
Healy  v.  Healy,  367. 
Heard  v.  Brooklyn,  980. 

V.  Downer,  509. 

V.  Fairbanks,  528. 


TABLE    OF   CASES. 


1  0^,^ 


KEFERENCES    ARE   TO   PAGES.] 


Heard  v.  Read,  307. 

V.  Reade,  641. 
Hearle  v.  Greenbank,  492,  613. 
Hearn  v.  Allen.  897. 
Hearne  v.  Hearne,  218. 

V.  Lewis,  783. 
Heartt  v.  Kruger,  712,  733. 
Heath  v.  Bishop.  1141. 

V.  Hall,  1254. 

V.  Heath,  59. 

V.  Nutter,  937. 

V.  Randall,  683. 

V.  White,  490. 

V.  Williams,  659,  662. 
Heaton  v.  Prather,  1084. 
Heavenridge  v.  Nelson,  457. 
Heavilon  v.  Heavilon,  526,  527. 
Hebbard  v.  Haughian,  878. 
Hebert  v.  Lavalle,  823. 
Heburn  v.  Warner,  1189. 
Hecht  V.  Dettman,  527. 

V.  Spears,  1290. 
Heckman  v.  Swett,  602. 
Hecock  V.  Van  Dusen,  1016. 
Heddleston  v.  Hendricks,  817. 
Heed  v.  Ford.  434. 
Heelis  v.  Blain,  207. 
Heermans  v.  Montague,  1313. 
Heffernan  v.  Addams,  938. 
Heffin  V.  Bingham,  685. 
Heflin  v.  Bingham,  527,  873. 

V.  Burns,  1002. 
Hefner  v.  Downing,  587. 

V.  Northwestern  Life  Ins.  Co., 
1262. 
Hail  V.  Redden.  930. 
Heilbron  v.  Fowler  Switch  Canal 

Co.,  661. 
Heilman  v.  Kroh,  926. 
Heintze  v.  Bentley.  1187. 
Heisen  v.  Heisen.  469. 
Heiser  v.  Shaeffer,  793. 
Heister  v.  Fortner.  1081,  1082. 
Helfenstine  v.  Garrard,  205. 
Hellawell  v.  Eastwood,  803. 
Hellerman  v.  Aultman.  1314. 
Heilman  v.  Levy.  1090. 

V.  McWilliams.  246. 
Helm  V.  McClure.  974. 

V.  Weaver,  1292. 

V.  Wilson,  583. 
Helmer  v.  Castle,  893. 
Hemhauser  v.  Decker,  618. 
Hemingway  v.  Scales,  382. 
Hemphill  v.  Davies,  844. 

V.  Flynn.  149.  156. 


Hemphill  v.  Pry,  631,  633. 
Hendee  v.  Pinkerton,  921. 
Henderson  v.  Adams,  205. 

v.  Astwood,  1207. 

V.  Blackburn.  616,  633. 

v.  Chaires,  481. 

V.  Conelly,  1301. 

V.  Eason,  392. 

V.  Fahey,  977. 

V.  Mears,  128. 

V.  Pilgrim,  1232.  1233. 

V.  Truitt,  1223. 
Hendricks  v.  Kassen,  931. 

V.  Stark.  692. 
Hendrix  v.  McBeth,  426,  562. 
Hendy  v.  Dinckerhoff,  542. 
Heney  v.  Pesoli,  932. 
Henley  v.  Wilson,  1011. 
Hennessv   v.    Patterson,    283,   307, 

342. 
Henning  v.  Burnet,  724. 
Henry's  Case,  547. 
Henry  v.  Brown,  75. 

V.  Carson,  1005. 

V.  Davis,  1170.  1171. 

V.  Fine,  1155. 

V.  Griffis,  1281. 

V.  Koch,  713,  73(1. 

V.  Mitchell,  1316. 

V.  Root,  1152. 

V.  Simpson,  632. 

V.  Tupper,  187,  188,  1190. 
Henry  &  Coatsworth  Co.  v.  Evans, 

1298,  1299. 
Henry  Gaus   &   Sons   Mfg.  Co.   v. 
St.  Louis,  K.  &  N.  W.  R.  Co..  815. 
Henshaw  v.  Wells,  1204. 
Hensley  v.  Brodie,  544. 
Henson  v.  Moore,  507. 

V.  Ott,  266. 

V.  Wright,  242. 
Henwood  v.  Cheeseman,  797. 
Herbage  Rents,  In  re,  794. 
Herbaugh  v.  Zentmyer,  782. 
Herbert  v.  Herbert,  631. 

V.  Kenton     Building     &     Sav. 
Ass'n.  504. 

V.  Pue,  874. 

V.  Selbv,  337. 

V.  Wren.  428,  4i)4.  455.  475. 
Herbst  v.  Merrifield,  1018. 
Herd  v.  Catron.  171. 

V.  Vreeland,  1218. 
Herlakenden's  Case,  529,  545,  564, 

578,  579. 
Herman  v.  Perkins,  1322. 


1384 


TABLE    OF   CASES. 


[references   ABE  TO   PAGES.] 


Herman  v.  Roberts,  719,  720,  725, 

728,  730. 
Herndon  v.  Kimball,  1082. 
Heron  v.  Hoffner,  623. 
Herrell  v.  Sizeland,  139,  142,  145. 
Herrick  v.  Geneva,  819. 

V.  Graves,  1134. 

V.  Marshall,  763. 

V.  Moore,  905. 
Herring  v.  Pollard,  553. 

V.  Rogers,  314. 

V.  Woodhull,  1227. 
Herrington  v.  Herrington,  1099. 

V.  Williams,  1078. 
Herron  v.  Gill,  804. 
Hersey  v.  Chapm,  93. 
Hershey  v.  Luce,  1181. 

V.  Metzgar,  527. 
Hershfield  v.  Rocky  Mountain  Bell 

Telephone  Co.,  812. 
Herskell  v.  Bushnell,  534. 
Herster  v.  Herster,  952. 
Herter  v.  Mullen,  152. 
Hertz  V.  Abrahams.  64. 
Heslop  V.  Gatton,  1280. 
Hesperia    Land    &    Water   Co.    v. 

Rogers,  1025. 
Hessel  v.  Johnson,  132. 
Hester  v.  Coats,  1001. 

v.  Hunnicutt,  910. 
Hetfield  v.  Baum,  593. 
Hetherington  v.  Clark,  1079,  1080, 
1091,  1092. 

V.  Graham,  465. 
Hetzell  v.  Barber,  640. 
Hewett  V.  Allen,  1133. 
Hewit  V.  Jewell,  695. 
Hewitt  V.  Cox,  447. 

V.  Deane,  1254. 

V.  Rankin,  1127. 
Hewlins  v.  Shippam,  700,  920. 
Hext  v.  Gill,  577. 
Heyer  v.  Deaves,  1260. 
Heyn  v.  Ohman,  911. 
Hibberd  v.  Melville,  973. 

V.  Smith,  936. 
Hibbert  v.  Cooke,  1286. 
Hibblewhite  v.  Morine,  867. 
Hick  V.  Mors,  966. 
Hickey  v.  Lake  &  M.  S.  Ry.  Co., 

751,  753,  754,  758. 
Hicklin  v.  McClear,  1017. 

v.  Marco,  1207. 
Hickman  v.  Green,  1087,  1088. 

v.  Irvine,  427. 

V.  Link,  1002. 


Hickox  V.  Chicago  &  C.  S.  Ry.  Co., 
173. 

V.  Lowe,  1183. 
Hicks  V.  Coleman,  1018. 

V.  Downing,  573. 

V.  Hicks,  1216. 

V.  Pepper,  508. 

V.  Ward,  616,  617. 
Hickson  v.  Byan,  510. 
Hidden  v.  Jordan,  1203. 
Hiester  v.  Green,  1287,  1292,  1293. 
Higbee  v.  Rice,  389,  390,  421. 

V.  Rodeman,  164. 
Higbie  V.  Westlake,  474. 
Higden  v.  Williamson,  306,  342. 
Higgenbotham  v.  Cornwell,  454. 
Higgins  V.  Bordages,  1129. 

V.  Breen,  420. 

V.  California      Petroleum      & 
Asphalt  Co.,  786,  791. 

V.  Carlton,  948. 

V.  Crosby,  1012. 

V.  Flemington  Water  Co.,  661. 

V.  Kendall,  1289. 

V.  Kusterer,  599. 

V.  McConnell,  1316. 

V.  Reynolds,  809. 

V.  Wasgatt,  870. 
High's  Estate,  300. 
Higinbotham  v.  Stoddard,  1119. 
Hilborne  v.  Brown,  543. 
Hilbourn  v.  Fogg,  122,  123. 
Hildreth  v.  Googins,  715. 

V.  Marshall,  947. 

v.  Thompson.  469,  483. 
Hileman    v.    Bouslaugh,    310.    314, 

317. 
Hiles  V.  Fisher,  380-382. 
Hill's  Estate,  386. 
Hill  V.  Bean,  1282. 

V.  Burrow,  64. 

V.  Cornwall,  442. 

V.  De  Rochemont,  557. 

V.  Dyer,  1120. 

V.  Franklin,  1123. 

V.  Gibbs,  401. 

V.  Grange,  897. 

V.  Hoole,  1185,  1231. 

V.  Jones,  638. 
.    V.  Lord,  824,  874. 

V.  McNichol,  927,  930. 

V.  Meeker,  1093. 

V.  Missouri  Pac.  Ry.  Co.,  590. 

V.  Myers,  1124. 

V.  Ressegien,  265. 

V.  Robertson,  1169. 


TABLE  OF  CASES. 


1  .^S5 


[REFEKENCES   ABE   TO   PAGES.] 


Hill  V.  Rockingham  Bank,  335,  337. 

V.  Sewald,  544. 

V.  Tupper,  678,  685. 

V.  Wentworth,  538. 

V.  West,  897. 
Hill's  Lessee  v.  West,  897. 
Hilleary  v.  Hilleary,  329,  469. 
Hilliard  v.  Binford,  454. 

V.  New   York  &  C.   Gas   Coal 
Co.,  126. 
Hills  V.  Barnard,  61. 

V.  Loomis,  1179. 

V.  Metzenroth,  769. 

V.  Miller,  756,  763. 

V.  Simonds,  292,  361. 
Hilton  V.  Bender,  380. 

V.  Granville,  672. 

V.  Hilton,  262. 
Himmelman  v.  Fitzpati'ick,  1238. 
Hinchley     v.     Field's     Biscuit     & 

Cracker  Co.,  1299. 
Hinchliffe  v.  Shea,  450,  453. 
Hinchman  v.  Lybrand,  1304. 

V.  Paterson  Horse  R.  Co.,  812. 

V.  Stiles,  447,  474. 
Hinckley's  Estate,  250,  251. 
Hinkley     &     Egery     Iron     Co.     v. 
Black,  130,  546. 

V.  James,  1303. 
Hinds'  Estate,  549. 
Hinds  V.  Charlton,  697. 
Hine  v.  Wooding,  588. 
Hines  v.  Hines,  1279. 

V.  Wilcox,  102. 
Hinkle  v.  Hinkle,  462. 
Hinkson  v.  Lees,  305. 
Hinman  v.  Booth,  932. 
Hinsdale  v.  Humphrey,  751. 

V.  Williams,  512. 
Hinson  v.  Adrian.  1127. 

V.  Bush,  464. 

V.  Williamson,  622. 
Hintze  v.  Thomas,  119,  798. 
Hirth  V.  Graham,  530. 
Hiscock  V.  Norton,  1288. 
Hitchcock  V.  Harrington.  435.  481, 
1194. 
V.  Libby,  584. 
Hitchins  v.  Bassett,  961. 
Hite  V.  Parks,  1286. 
Hitner's  Appeal,  450,  462. 
Hitner  v.  Ege,  76,  101,  494. 
Hitz     V.     National     Metropolitan 

Bank,  499. 
Hoadley,  In  re,  308. 

V.  San  Francisco,  818. 


Hoag  V.  Howard,  1317. 
Hoagland  v.  Crum,  135,  784. 

V.  Lusk,  1304. 
Hoban  v.  Cable,  888. 
Hobart  v.  Hobart,  970. 

V.  Sanborn,  1168,  1197,  1199. 
Hobbs  V.  Harvey,  477. 

V.  Smith,  1142. 
Hoboken  Land  &  Improvement  Co. 
V.  Hoboken,  817. 

v.  Kerrigan,  894,  895. 
Hobson  v.  Philadelphia,  894. 
Hocker  v.  Gentry,  258. 
Hockmuth  v.  Des  Grand  Champs, 

586. 
Hodgdon  v.  Heidman,  1256. 

v.  Shannon,  1183. 
Hodge  V.  Amerman,  1088. 

V.  Boothby,  874. 

V.  Sloan,  763,  765. 
Hodges   V.   Baltimore  Union   Pas- 
senger Ry.  Co..  812. 

V.  Eddy,  1048. 

V.  Horsfall,  878. 

V.  Latham,  910,  911. 

V.  Phinney,  484. 

V.  Shields,  124. 

V.  Winston,  1126. 
Hodgin  V.  Toler,  622. 
Hodgkins  v.  Farrington,  681.  682, 
684,  702. 

V.  Thornborough,  790. 
Hodgkinson's  Petition,  406. 
Hodgman  v.  Kittredge,  949,  950. 
Hodgson  V.  Ewart,  334. 

V.  Gascoigne,  525. 

V.  Perkins,  747. 
Hodo  V.  Johnson,  507. 
Hodsden  v.  Lloyd,  962. 
Hodson  v.  Ball,  349. 
Hoeveler  v.  Fleming,  128,  792. 
Hoff's  Appeal,  1245.  1246. 
HofEar  v.  Dement,  378. 
Hoffman  v.  Armstrong,  515,  532. 

V.  Harrington,  862. 

V.  Hoffman,  64L 

V.  Kuhn,  692,  727,  733. 

V.  McColgan.  1300. 

V.  Port  Huron,  889. 

V.  Ryan,  1185. 

V.  Stigers,  382. 
Hoffmire  v.  Martin.  933. 
Hoffsass  V.  Mann,  48. 
Hogan  V.  Barry,  701,  763. 

V.  Curtin,  170. 

V.  Jaques.  228,  882. 


1386 


TABLE   OF   CASES. 


[references  are  to  pages.] 


Hogan  V.  Page.  882. 

V.  Stone.  1202. 
Hoge  V.  Hoge,  234. 
Hogenson  v.  St.  Paul.  M.  &  N.  Ry. 

Co..  665. 
Hogg  V.  Beerman,  826. 
Hoglen  V.  Cohan.  1320. 
Hogsett  V.  Ellis,  150,  151.  1205. 
Hogue  V.  Sheriff,  1322. 
Hohman's  Appeal,  1307. 
Hoil  V.  Stratton  Mills.  530. 
Hoitt  V.  Hoitt,  957,  962-964. 
Hoke  V.  Blair,  131  (. 
Holbrook  v.  Betton,  1172. 

V.  Bliss,  1259. 

V.  Debo,  1045. 

V.  Finney,  423,  424,  441. 

V.  Perry,  510. 

V.  Tirrell,  935. 

V.  Wightman,  508-510. 
Holcomb  V.  Coryell,  394. 
Holdane  v.  Cold  Spring,  976.  978. 
Holden  v.  Garrett.  1313,  1319. 

V.  Robinson  Mfg.  Co.,  827. 

V.  Wells,  491. 
Holder  v.  Coates,  532. 
Holdfast  V.  Dowsing,  948. 
Hole  V.  Barlow.  653. 

V.  Rittenhouse,  1017. 
Holford  V.  Hatch,  113,  119. 
Holgate  V.  Kay,  789. 
Holladay  v.  Marsh,  588. 
Holland  v.  Adams.  263. 

V.  Alcock, 1139. 

V.  Cruft.  261. 

V.  Hodgson,  537,  539,  540. 

V.  Kreider,  1133. 

V.  Long,  1022. 

V.  Moon,  939. 

V.  Rogers,  860. 
Holley  V.  Glover.  441. 

V.  Hawley,  1009,  1083. 

V.  Yoimge,  908. 
Hollinrake  v.  Lister,  188. 
Hollins  V.  Demorest,  729. 
Hollis  V.  Burns.  146,  152. 

V.  Pool,  88.  131,  143,  154. 

V.  State,  1124,  1130. 
Hollis'   Hospital    &    Hague's    Con- 
tract, In  re,  353. 
Hollister  v.  Dillon,  1195. 

V.  Shaw,  628,  630. 
Holloway  v.   Holloway,   406,   1122, 
1123. 

V.  Radcliffe.  259. 


Holman  v.  Bonner,  1011. 

V.  Creagmiles,  904. 

V.  Patterson,  1292. 
Holme  V.  Strautman,  881. 
Holmes  v.  Best,  391. 

V.  Coghill,  643,  644. 

V.  Danforth,  907. 

V.  French,  1263. 

V.  Goring,  732. 

V.  Jones,  735. 

V.  Pickett,  205. 

V.  Seely,  714,  721,  722,  816. 

V.  Tremper,  552. 

V.  Turner's     Falls     Co.,     894, 
1012. 

V.  Winchester,  1128. 
Holmes     &    Griggs    Mfg.     Co.    v. 
Holmes    &   Wessell    Metal    Co., 
1156. 
Holms  V.  Seller,  701. 
Holridge  v.  Gillespie,  1198. 
Holroyd  v.  Marshall,  1172. 
Holsman  v.  Boiling  Spring  Bleach- 
ing Co.,  658,  688,  1029,  1185. 
Holt's  Will,  In  re,  948-950. 
Holt  V.  Hogan,  638. 

V.  Pickett,  314. 

V.  Sargent,  818. 

V.  Somerville,    821. 

V.  Wilson,  379. 
Holyoke  v.  Jackson,  385. 
Holyoke  Water  Power  Co.  v.  Ly- 
man, 601,  825. 
Home  Building  &   Loan  Ass'n  of 

Columbus  V.  Clark,  1084. 
Home  Life   Ins.   Co.    v.    Sherman, 

126. 
Homestead  Cases,  1131. 
Honore  v.  Blakewell,  1291. 

V.  Lamar  Fire  Ins.  Co.,  1210. 
Honywood  v.  Honywood,  563,  564, 

579. 
Hooberry  v.  Harding,  211. 
Hood  V.  Dawson,  64. 

V.  Haden.  619.  626-628. 

V.  Hood,  256,  464. 
Hook  V.  Joyce,  699. 
Hooker  v.  Cummings,  825. 

V.  Utica  &  M.  Turnpike  Road 
Co.,  194. 
Hooks  V.  Lee,  496. 
Hooper,  Ex  parte.  1185. 

V.  Columbus  &  W.  Ry.  Co.,  219. 
219. 

V.  Cummings,  164.  166,  176. 

V.  Feigner,  247. 


TABLE   OF   CASES. 


1  ;vs: 


[kki'erexc'ES  are  to  packs. J 


Hooper  v.  Hobson.  828. 

V.  Scheimer,  843. 
Hoosier  Stone  Co.  v.  Malott,  719. 
Hooton  V.  Holt,  105. 
Hoover  v.  Haleu,  867. 

V.  Hoover,  287. 
Hope  V.  Johnson,  606. 
Hopewell   Mills   v.    Taunton    Sav. 
Bank,  537,  538,  540,  542,  543,  547, 
1173. 
Hopf  V.  State,  948. 
Hopkins  v.  Frey,  432. 

V.  Grimshaw.     229,    353,    356, 
362. 

V.  Hopkins,  323,  324,  328. 

V.  Paxton,  1119. 

V.  Warner,  1220. 

V.  Woolley,  1224. 
Hopkins    Academy    v.    Dickinson, 

1038,  1039. 
Hopkinson  v.  Dumas,  246.  432,  437. 

V.  Rolt,  1186. 
Hoppe  V.  Hoppe,  512. 
Hopper  V.  Demarest,  306,  489. 

V.  Smyser,  1182. 
Hoppes  V.  Cheek,  909. 
Hoppin  V.  Doty,  1086. 

V.  Tobey,  879. 
Hoppock  V.  Shober,  1311. 
Hopson  V.  Aetna   Axle   &   Spring 
Co.,  1263. 

V.  Fowlkes,  383. 
Hopwood  V.  Schofield,  731. 
Horan  v.  Thomas,  175. 
Horback  v.  Hill,  1181. 

v.  Tyrrell,  505. 
Horey  v.  Haverstraw.  819. 
Horn  V.  Bennett,  1228. 

v.  Indianapolis      Nat.      Bank, 
543,  1207. 

V.  Keteltas,  1179.  1182. 

V.  Miller,  1028. 

V.  People,  972. 
Hornbeck  v.  Westbrook.  874. 
Home  v.  Smith,  539. 
Horner  v.  Dellinger.  7S7. 

v.  Leeds,  84.  131. 

V.  Pleasants,  597. 

V.  Watson,  672. 
Hornsey  v.  Casey.  458. 
Horsford  v.  Wright,  913. 
Horsley  v.  Fawcett.  220. 

V.  Hilburn,  57. 
Horstman  v.  Gerker,  1230. 
Horton  v.  Hilliard,  510. 

v.  Sledge,  280,  863. 


Horton  v.  Upham,  289. 
Horwitz  V.  Norris,  634. 
Hosford  V.  Johnson,  1265. 

V.  Wynn,  508,  510. 
Hoskin  v.  Woodward.  1211. 
Hoskins  v.  Byler,  1009. 

v.  Paul,  803,  804. 
Hosmer  v.  Carter,  1171. 
Hoss  V.  Hoss.  167. 
Hossack  V.  Graham,  1284. 
Hotchkys,  In  re,  571. 
Hottell     V.     Farmers'     Protective 

Ass'n,  752. 
Hottenstein  v.  Lerch.  1088,  1090. 
Hotz's  Estate.  171. 
Houell  V.  Barnes,  625. 
Hough  V.  Horsey,  1221. 

V.  Martin,  582. 
Hougham  v.  Harvey,  1033. 
Houghton  V.  Davenport,  1317. 

V.  Hapgood,   493. 

V.  Lee,  1133. 
Hoult  V.  Donahue,  1076. 
House  V.  Dexter,  267. 

V.  Jackson,  438,  444. 
House  of  Mercy  of  New  York  v. 

Davidson,  1158. 
Housel  V.  Conant,  655. 
Houseman  v.  Girard  Mut.  Building 

&  Loan  Ass'n,  1087. 
Houston  V.  Laffee,  682. 

V.  McCIurey,  1286,  1317. 

V.  Smith,  438. 

V.  Timmerman,  1098.  1099. 
Houx  V.  Batteen,  865. 

V.  Seat,   684. 
Hovey  v.  Hobson,  1153.  1155. 
How  V.  Vigures,  1166. 
Howard  v.  Ames,  1272. 

V.  Carpenter.     149,     154,     620, 
635,  636. 

V.  Carusi.  331.  332. 

V.  Daniels,  1316. 

V.  Fessenden.  554. 

V.  Harris,  1170. 

V.  Henderson,  211. 

V.  Lincoln,  527,  873. 

V.  Merriam,  143. 

V.  Moale,  67. 

V.  North.  416,  881. 

V.  Patterson,  218. 

V.  Robinson.  1168,  1194. 

V.  Schmidt.  1229. 

V.  State.  1033. 
Howard  Ins.  Co.  v.  Halsey,  1225. 


1388 


TABLE  OF  CASES. 


[itKFEKKXCJiS    .\1:E    TO    IMAGES.] 


Howard    Mfg.    Co.    v.    Water   Lot 

Co.,  751,  757. 
Howe,  Petition  of,  1283. 

V.  Batchelder,  530. 

V.  Harding,  1287. 

V.  Hodge,  345,  358. 

V.  Morse,  345. 

V.  Stevens,  697,  698,  730. 

V.  Ward,  1110. 

V.  Warnack,  869. 

V.  Waysman,  1114. 
Howell    V.    Essex    County    Road 
Board,  1320. 

V.  Estes,  710. 

V.  Jones,  512,  1127. 

V.  King,  719. 

V.  Knight,  315. 

V.  Leavitt,  1200. 

V.  Lewis,  788. 

V.  McCrie,  504. 

V.  Schenck,  525. 
Howeth  V.  Anderson,  101. 
Howland  v.  Coffin,  795,  796. 

V.  Shurtleff,  1255. 
Howze  V.  Dew,  394. 
Hoxie  V.  Carr,  230. 
Hoxsey  v.  Hoxsey,  331. 
Hoxton  V.  Arctier,  302. 
Hoy  V.  Anderson,  1126. 

V.  Bramhall,  1224,  1260. 

V.  Holt,  101. 

V.  Sterrett,  662. 
Hoyle  V.  .Jones,  60. 

V.  Plattsbiirg  &  M.  R.  Co.,  538, 
540. 

V.  Stowe,  402. 
Hoyt  V.  Day,  606,  613. 

V.  Hoyt,  1282. 

V.  Hudson,  664,  955. 

V.  Jacques,  618. 

V.  Ketcham,  183. 

V.  Stoddard,  110. 

V.  Swar.  1149. 

V.  Swift,  1239. 

V.  Thompson,  1120. 
Hrouska  v.  Janke,  866. 
Hubbard  v.  Bailey,  595. 

V.  Bell,  827. 

V.  Greeley,  933,  934. 

V.  Hubbard,  178,  180. 

V.  Jones,  1308. 

V.  Norton,  905,  908,  912. 

V.  Town,  1031. 
Hubbell  V.  Broadwell,  1261. 

V.  Moulson,    1169,    1200,    1202, 
1206. 


Hubbell  V.  Sibley,  1240. 
Hubble  V.  Cole,  567. 
Huber  v.  Gazley,  980. 
Huck  V.  Flentye,  693. 
Huckabe  v.  Abbott,  1185. 
Hudgins  v.  Morrow,  1269. 

V.  Wood,  535. 
Hudkins  v.  Ward.  1250. 
Hudmit  V.  Nash.  1262. 
Hudson  V.  Poindexter,  922. 

V.  Revett,  934. 
Huebschman  v.  McHenry,  537,  538. 
Huerstal  v.  Muir,  525. 
Huey  V.  Huey,  930. 
Huff  V.   Cumberland  Valley  Land 
Co.,  911. 

V.  McCauley,  37,  82.  680.  682, 
700,  746,  920. 

V.  McDonald,  391,  393. 
Hufschmidt  v.  Gross,  509. 
Huggins  V.  Ketchum,  1319. 
Hughes  V.  Allen,  442. 

V.  Anderson,  664. 

V.  Edwards.  1179,  1240,  1255. 

V.  Farmers'  S.,  B.  &  L.  Ass'n, 
205. 

V.  Graves,  998. 

V.  Hughes,  335. 

V.  Lacock,  1307. 

V.  Murtha,  952. 

V.  Nicklas,  311,  315. 

V.  Pickering,  1000,  1002. 

V.  Providence    &    W.    R.    Co., 
894. 

V.  Riggs,  1260. 

V.  United  Pipe  Lines,  519. 

V.  Watson,  1149,  1151. 

V.  Williams,  1202. 
Hugunin  v.  Cochrane,  424,  425. 

V.  Courtenay,  265. 

V.  Starkweather,  1188. 
Hulbert  v.  Clark.  1256. 
Hulett  V.  Carey,  962. 
Hulick  V.  Scovill,  843,  936. 
Huling  V.  Abbott.  1095. 

V.  Fenner,  617. 

V.  Roll,  856. 
Hull  V.  Culver,  633. 

V.  Glover,  1145. 

V.  Louth,  1155. 
Hull  &  Selby  Ry.  Co.,  In  re,  1035. 
Hulse's  Will,  In  re,  947. 
Humbertson   v.   Humbertson,   304. 
Humble  v.  Glover,  796. 

v.  Langston,  121. 
Humes  v.  Bernstein,  1120. 


TABLE  OF  CASES. 


1389 


[ISEI'EIJENCES    ARE    TO    PAdES.] 


Humiston  v.  Wheeler,  856. 
Hummel   v.   Seventh   St.    Terrace 

Co.,  650. 
Hummelman  v.  Mounts,  87U. 
Humphrey  v.  Campbell,  644. 

V.  Copeland.  1313. 

V.  Merritt.  526. 

V.  Spencer,  1146,  1147. 
Humphreys  v.  McKissock.  897. 
Humphries  v.  Brogden,  668,  672. 

V.  Cousins,  668,  689. 

V.  Humphries,  138, 
Hunkins  v.  Hunkins,  437.  485. 
Hunnicutt  v.  Peyton,  1017. 

V.  Summey,  1128. 
Hunt  V.  Acre".  1266. 

V.  Bailey,  154. 

V.  Bay  State  Iron  Co..  542. 

V.  Blackburn,  380. 

V.  Brown,  895. 

V.  Comstock.  105. 

V.  Cope,  128.  793. 

V.  Dunn.  1085. 

V.  Gardner.  857. 

V.  Hall,  577. 

V.  Hunt,   848.   862.   1153.   1226, 
1251. 

V.  Johnson,  1078. 

V.  Lewis.  1277. 

V.  Mansfield,  1224. 

V.  Marsh.  1292. 

V.  Raplee,  903. 

V.  Rousmanier,       614.       1268, 
1270. 

V.  Stiles.  1259. 

V.  Swayze,  1313. 

V.  Thompson,  117,  464. 

V.  Watkins,  75. 
Hunter's  Appeal,  416. 
Hunter  v.  Anderson,  255,  625. 

V.  Dennis,  1241. 

V.  Galliers.  1142. 

V.  Law,  512. 

V.  Patterson,  871. 

V.  Levan.'  1263. 

V.  Sandy  Hill.  972,  979. 

V.  Truckee  Lodge,  1298. 

V.  Whitworth.  490,  491. 
Huntington  v.  Asher,  743. 

V.  Parkhurst,  87,  88.  139.  142. 

V.  Smith,  1196. 
Huntley  v.  Cline.  405. 

V.  Kingman,  1110. 
Kurd  V.  Curtis,  752,  754,  755, 

V.  Cushing.  73. 


Hurd  V.  Hixon,  1  j.::'J. 

V.  Robinson,  1184. 
Hurdman  v.  Northeastern  Ry.  Co., 

666. 
Hurlburt  v.  McKone,  652,  653,  654. 

V.  Wheeler,  928. 
Hurley  v.  Estes,  1274. 

V.  Hollyday,  1294. 

V.  Hurley,  400,  401. 
Hurst  V.  Dulaney,  425. 

V.  Hurst.  322. 

V.  Wilson,  317. 
Hurt  V.  Prillaman,  1310. 
Hurto  V.  Grant,  174,  176. 
Husband  v.  Aldrich,  396. 
Huss  V.  Stephens,  867. 
Hussey  v.  Fisher,  1236. 

V.  Ryan,  105. 
Hussman  v.  Durham,  843,  845. 
Husted's  Appeal,  476. 
Husted  V.  Willoughby,  585. 
Huston  V.  Bybee.  1026. 

V.  Cincinnati  &  Z.  R.  Co.,  753, 
758. 

V.  Seeley,  495. 
Hutcheson  v.  Grubbs,  1305. 
Hutchins  v.  Carleton,  867,  869. 

V.  Heywood,  207,  211,  215. 

V.  Masterson,  538. 

V.  Smith,  652. 
Hutchinson  v.  Bramhall,  1313. 

V.  Crane,  1294. 

V.  Cummings,  103. 

V.  Dearing,  1194. 

V.  Ford,  1174. 

V.  Gilbert.  1282. 

V.  Lord,  241. 

V.  Ulrich,  763. 
Hutto  V.  Tindall,  1033. 
Hutton  V.  Moore,  1279. 

V.  Smith,  931. 
Hutzler  v.  Phillips,  1285. 
Huxley  v.  Rice.  234. 
Huyck  V.  Andrews,  904,  905,  908. 

V.  Bailey,  1047. 
Huyler  v.  Atwood,  1218. 
Hyatt  V.  Ac'kerson.  443. 

V.  Griffiths,  153. 

V.  .lames,  1191. 
Hyde  v.  Mangan,  1088. 

V.  Tanner.  1321. 
Hyett  V.  Mekin,  257,  261. 
Hyman  v.  Devereux.  1268. 
Hyndman  v.  Hvndman,  1170,  1216, 
1272, 


1390 


TABLE  OF  CASES. 


[kefkkexces  are  to  pages.] 


I. 


Ibbs  V.  Richardson,  151. 

Idaho  Land  Co.  v.  Parsons,  583. 

Ide  V.  Ide,  330. 

Idle  V,  Cook,  64. 

Idley  V.  Bowen,  959. 

Iglehart  v.  Crane,  1223. 

Ilchester,  Ex  parte,  961. 

Illinois  Cent.  R.  Co.  v.  Grabill,  652. 

V.  Illinois,  592,  595. 

V.  McCullough,  1089. 
Illinois  Land  &  Loan  Co.  v.  Bon- 
ner, 334,  1150. 
Illinois  Starch  Co.  v.  Ottawa  Hy- 
draulic Co.,  1257. 
Illinois  Steel  Co.  v.  Budzisz,  1001. 
ImhofE  V.  Lipe,  1131. 

V.  Witmer,   1153. 
Imlay  v.  Union  Branch  R.  Co.,  811. 
Inches  v.  Dickenson,  111. 

V.  Hill,  246,  291. 
Independent    School    District    of 

West  Point  v.  Werner,  1306. 
Indianapolis,   B.    &   W.   R.    Co.   v. 

Hartley,  811,  978. 
Indianapolis  Water  Co.  v.  Nulte, 

754. 
Ingalls  V.  Hobbs,  99. 

V.  Newhall,  389. 

V.  St.  Paul,  M.  &  M.  Ry.  Co., 
554. 
Ingals  V.  Plamondon,  692,  712,  728. 
Ingersoll  v.  Lewis,  1000. 

V.  Sergeant,  777,  778. 
Inglis  V.  Sailors'  Snug  Harbor,  363. 
Ingoldsby  v.  Juan,  866. 
Ingraham  v.  Baldwin,  124. 

V.  Disborough,  1230. 

V.  Ingraham,  363,  364,  612. 

V.  Meade,  617. 
Ingram  v.  Ingram,  619. 

V.  Little.  868. 

V.  Threadgill,  595. 
Inman  v.  Morris,  799. 
International  Bank  of  Chicago  v. 
Van  Kirk,  1191. 

V.  Wilshire,  1232. 
Iowa    County    Sup'rs    v.    Mineral 

Point  R.  Co.,  1262. 
Ireland  v.  Nichols.  179. 

V.  Woolman,  1223. 
Irish  V.  Johnson,  782. 
Iron  Mountain  &  N.  R.  Co.  v.  John- 
son, 156. 
Irons  V.  Webb,  530. 


Irvin  V.  Clark,  292. 
Irvine    v.    Irvine,    173,    174,    1044, 
1147,  1149. 

V.  Newlin,  292. 
Irving  V.  Thomas,  87. 

V;  Turnbull,  759. 
Irwin  V.  Brown,  401. 

V.  Covode,  562,  563. 

V.  Davidson,  1202. 

V.  Dixion,  973,  975. 

V.  Ivers,  230. 

V.  Phillips,  662. 

V.  Yeager,  816. 
Isenthart  v.  Brown,  458,  459. 
Isett  V.  Lucas,  1228. 
Isham  V.  Bennington,  919. 
Isler  V.  Koonce,  1266. 
Israel  v.  Israel,  392. 
Issitt  V.  Dewey,  930. 
Ithaca    First    Baptist    Church    v. 

Bigelow,  697,  698. 
Ive's  Case,  854. 
Ive  V.  Sams,  854. 
Ives  V.  Van  Auken,  874. 
Ivey  V.  White,  1302. 


Jackman  v.   Arlington   Mills,   661, 
663,  665. 

V.  Delafield,  622. 
Jacks  V.  Chaffin,  998. 
Jackson  v.  Adams,  1159. 

V.  Allen.  178. 

V.  Andrew.  576. 

V.  Andrews,  1099. 

V.  Babcock,  681. 

V.  Bank     of     United     States, 
1311. 

V.  Bodle.  936. 

V.  Bradt,  402,  403. 

V.  Bronson,  1230. 

V.  Brown,  304. 

V.  Brownson,  564. 

V.  Bryan,  138,  142. 

V.  Bull,  50,  330. 

V.  Burchin,  1149. 

V.  Burns,  1158. 

V.  Caldwell,  860. 

V.  Carswell,  1175. 

V.  Cator,  577. 

V.  Churchill,  453,  455. 

V.  Cleveland.  228. 

V.  Crysler,  176,  181. 

V.  Davis.  123. 

V.  Delancy.  242. 


TABLE  OF  CASES. 


LV>L 


[UKl'IJJKM  i:s    AHE    TO    J'AliKs.J 


Jackson  v.  Dillon,  878. 

V. 

Duiiand,  949. 

V. 

Edwards,  440,  468. 

V. 

Everett,  284,  306,  307, 

618. 

V. 

Farmer,  156. 

V. 

Ferris,  625. 

V. 

Fitz  Simmons,  1159. 

V. 

Gilchrist,  1144. 

V. 

Glaze,  1113. 

V. 

Green,  1159. 

V. 

Groat,  1140. 

V. 

Gumaer,  1120. 

V. 

Hampton,  860. 

V. 

Harrison,  107,  134. 

V. 

Harsen,  84,  1011. 

V. 

Hart,  844,  921. 

V. 

Hathaway,  810,  894. 

V. 

Hobhouse,  1142. 

V. 

Hodges,  497. 

V. 

Houston,  1005. 

V. 

Jackson,  499,  502,  1160 

V. 

Jacoby,  880. 

V. 

Jansen,  641. 

V. 

Johnson,  488,  489,  491, 
500,  1004. 

494, 

V. 

Jones,  13U6. 

V. 

Kisselbrack,  89. 

V. 

Laurence,  1180. 

V. 

Lawton,  845. 

V. 

Ligon,  632. 

V. 

Livingston,  378. 

V. 

Loomis,  564. 

V. 

Luce,  1314. 

V. 

Lynch,  1170. 

V. 

McConnell,  381. 

V. 

Mancius,  73. 

V. 

Massachusetts     Mut. 
Ins.  Co.,  1207,  1210. 

Fire 

V. 

Matsdorf,  233. 

V. 

Merrill,  49. 

V. 

Moore,  1004. 

V. 

Noble,  341. 

V 

O'Donaghy,  481. 

V 

Phillips,    249-252,    360. 
923. 

362, 

V 

Phipps,  929,  931,  936. 

V 

Potter,  970. 

V 

Reid,  1133,  1134. 

V 

Root,  867,  869. 

V 

Rounseville,  730. 

V 

Rowland,  124,  932. 

V 

Rowley,  932. 

V 

Rutland  &  B.  R.  Co.,  590, 

V 

Rutledge,  1292. 

V 

Salmon,  152. 

V 

Sanford,  920. 

Jackson  v.  Sellick.  4.s!t.  490. 
V.  Sidney.  4U2. 
V.   Silvernail,  K'T. 
V.  Smith,  390. 
V.  Stevens,  1146. 
V.  Stevenson,  769. 
V.  Sublett,  306. 
V.  Swart,  860. 
v.  Topping,  160,  182. 
V.  Town,  1116. 
v.  Trullinger,  897. 
V.  Turrell,  1212. 
V.  Van  Bergen,   402. 
V.  Vanderheyden,  466,  470. 
V.  Van  Hoesen,  72. 
V.  Vermilyea,  1017. 
V.  Von  Zedlitz,  1141. 
V.  Waldron,  341. 
V.  Waltermire,  422. 
V.  Walton,  537. 
V.  Warren,  1261. 
V.  Wells,  50. 
V.  Willard,  1194,  1196. 
V.  Wood,  1255. 
V.  Woodruff,  1016,  1018. 
Jackson,  L.  &   S.  R.  Co.  v.  Davi- 
son, 1086. 
Jackson  &  Sharp  Co.  v.  Philadel- 
phia, W.  &  B.  R.  Co.,  682. 
Jacksonville    v.    Jacksonville    Ry. 
Co.,  979. 
V.  Lambert,  665. 
Jacob's  Estate,  943. 
Jacob  V.  Howard,  308. 
Jacobs  V.  Moseley,  585. 

V.  Seward,  580. 
Jacobson,  In  re,  946. 
.Jaeger  v.  Hardy,  1086. 
Jamaica  Pond   Aqueduct   Corp.  v. 

Chandler,  873,  883. 
James  v.  Fisk,  1253. 
V.  Fulcrode,  230. 
V.  Lichfield.  906. 
V.  Morey,     1179.     1186,     ]23ii, 

1251. 
V.  Plant,  734. 
V.  Shrimpton,  969. 
Jameson  v.  Hayward,  406. 
V.  Rixey,  407,  1287. 
V.  Smith.  613. 
Jamieson  v.  Bruce,  1168. 
Jamison  v.  Bancroft.  1132. 
V.  Fopiano,  &88. 
V.  Miller,  1317. 
Janes  v.  Jenkins,  687,  706,  907. 
V.  Throckmorton.  257. 


1392 


TABLE  OF  CASES. 


[references  are  to  sections.] 


Jansen  v.  McCahill,  919. 
Jaques  v.  Weeks,  1183. 
Jarnigan  v.  Jarnigan,  465. 

V.  Maies,  718. 
Jarratt  v.  McCabe,  1239. 

V.  McDaniel,  1186. 
Jarrett  v.  Stevens,  843,  844,  1002. 
Jarsdadt  v.  Smith,  721. 
Jarvis  v.  Aikens,  1080. 

V.  Brooks,  387,  388. 

V.  Butcher,  1172,  1285. 

V.  Southern  Grocery  Co.,  1276. 

V.  State  Bank  of  Ft.  Morgan, 
1302. 

V.  Woodruff,  1240. 
Jason  V.  Eyres,  1170. 
Jasper  v.  Maxwell,  1146. 
Jay  V.  Michael,  714. 

V.  Whelchel.  1010. 
Jean  v.  Wilson,  1302. 
Jecko  V.  Taussig,  44. 
Jee  V.  Hudley,  352. 
Jefferies  v.  Allen.  436,  466. 
Jeffei'ies  v.  East  Omaha  Land  Co., 

1034,  1037. 
Jeffers  v.  Lampson,  286,  306,  342. 

V.  Philo,  934. 
Jefferson  v.  Coleman,  1257. 
Jeffersonville,    M.   &   T.   R.   Co.   v. 

Nichols,  590. 
Jenkins  v.  Collard,  1051. 

V.  Eldredge,  89.  224,  234. 

V.  Fowler,  651. 

V.  Holt,  462. 

V.  Hopkins,  904. 

V.  Jenkins.  175,  420,  865,  1148. 

V.  Jenkins  University,  229. 

V.  Jones.  1119. 

V.  Lykes,  683,  684. 

V.  McCoy,  525. 
Jenks  V.  Colwell,  542,  543. 

V.  Horton,  76. 

V.  Williams,  651. 
Jenne  v.  Piper,  722. 
Jenner  v.  Morgan.  784. 
Jenness  v.  Cutler,  506. 
Jennings  v.  Bonde,  568. 

V.  Moore,  1228. 

v.  Ward,  1192. 

V.  Wood,  1083. 
Jerome   v.    Carbonate   Nat.    Bank, 
1317. 

V.  McCarter,  1262. 

V.  Ortman,  920. 
Jesser  v.  Gifford,  731. 
Jesson  V.  Wright,  314. 


Jesus  College  v.  Bloom,  578. 
Jeter  v.  Penn,  534,  535. 
Jevon  V.  Bush,  226. 
Jewell  V.  Harding,  921. 

V.  Lee,  185,  767. 

V.  Porter,  1146. 

V.  Warner,  57. 
Jewett  V.  Hamlin,  1188. 

V.  Hussey,  1027. 

V.  Preston,  394. 

V.  Tucker,  220. 
Jiggitts  V.  Jiggitts,  445. 
Jillson  V.  Wilcox,  67.  ' 

Jocelyn  v.  Nott,  363. 
John  Hancock  Mut.  Life  Ins.  Co. 

V.  Patterson,  707.  709-711. 
John    Morris    Co.    v.    Southworth, 

650. 
John  &  Cherry  Streets,  In  re,  1171. 
John's  Will,  In  re,  362,  363. 
Johns  v.  Johns,  13. 

V.  McKibben.  1007. 
Johnson  v.  Albertson,  88. 

V.  Anderson.  894,  1185. 

v.  Archibald,  888. 

V.  Arnold,  896. 

v.  Baker,  933. 

V.  Barber,  527. 

V.  Barnes,  748. 

V.  Barrett,  1247,  1248. 

V.  Bell,  1316. 

V.  Blydenburg,  1171. 

V.  Branch,  400,  1044. 

V.  Brook,  920. 

V.  Brown,  1264. 

V.  Carpenter,  1232. 

V.  Cawthorn,  1312. 

V.  Chapman,  416. 

V.  Christian,  219. 

V.  Collins,  914. 

V.  Corbett,  698. 

V.  Cornett,  1230. 

V.  Cummins,  502. 

V.  Gushing,  644. 

V.  Dixon,  101. 

V.  Farley,  936. 

V.  Fritz,  495. 

V.  Gaylord,  508. 

V.  Gibson,  1095. 

V.  Gooch,  159. 

V.  Hambleton,  1265. 

V.  Hardy,  402. 

V.  Hart,  380. 

V.  Hoffman,  534. 

V.  Holifield,  956,  1139. 

V.  Hosford,  1265. 


TABLE  OP  CASES. 


1393 


[refebences  are  to  pages.] 


Johnson  v.  Huston,  1169. 

V.  Johnson,   218,   463,   564-566, 
578,  580,  1269,  1283. 

V.  Jordan,  709,  712. 

V.  Kinnicutt,  720. 

V.  Knapp,  707,  709,  710. 

V.  Knott,  597. 

V.  Lewis,  1277. 

V.  Mcintosh,  830. 

V.  Mayne,  253. 

V.  Monell,  1266. 

V.  Montgomery,  452,  866. 

V.  Moon,  475. 

V. -Morton,  336. 

V.  Moser,  1125. 

V.  Norton,  583. 

V.  Nyce,  469,  909. 

V.  Oppenheim,  126. 

V.  Owens,  802. 

V.  Pelot,  397. 

V.  Perley,  427,  484. 

V.  Plume,  424. 

V.  Prairie,  220. 

V.  Rayner,  883. 

V.  Rice,  1225. 

V.  Richardson,  1127,  1186. 

V.  Robertson,  1249. 

V.  Shepard,  1277. 

V.  Sherman,  119,  1197,  1237. 

V.  Shields,  469,  470. 

V.  Skillman,  681,  682. 

V.  Slater,  924. 

V.  Smith,  76,  113. 

V.  Stayton,  1033. 

V.  Thomas,  481-483. 

V.  Thompson,  1221. 

V.  Touchet,  637. 

V.  Toulmin,  389,  390. 

V.  Turner,  924. 

V.  Van  Velsor,  450. 

V,  Vandervort.  1146,  1147. 

V.  Warren,  159,  172,  188. 

V.  Williams,  1091. 

V.  Wilson,  403. 

V.  Zinlv,  1224,  1248. 
Johnston's  Estate,  345,  354,  359. 
Johnston  v.  Furnier,  1152. 

V.  Gray,  1170. 

V.  Gwathney,  1290. 

V.  Hargrove,  175. 

V.  Jones,  1037. 

V.  King,  191. 

V.  Knight,  628,  631. 

V.  Muzzey,  751. 

V.  Old  Colony  Ry.  Co.,  814. 

V.  Roane,  660. 

Real  Prop.— 88. 


Johnston  v.  San  Francisco  Savings 
Union,  386. 

V.  Smith,  468. 

V.  Vandyke,  477. 

V.  Wallace,  926,  927. 
Johnstown    Cheese    Mfg.    Co.    v. 

Veghte,  689. 
Johnstown    Iron    Co.    v.    Cambria 

Iron  Co.,  747. 
Joliet  First  Nat.   Bank  v.   Adam, 

552. 
JollifEe  V.  East,  375. 
Jones'  Appeal,  241, 
Jones,  In  re,  1224. 

V.  Barnes.  857. 

V.  Bigstaff,  404. 

V.  Blumenstein,  509. 

V.  Bragg,  435,  451. 

V.  Brewer,  473,  477. 

V.  Britton,  1122,  1133. 

V.  Bush,  931. 

V.  Carter,  178,  180,  181,  790. 

V.  Chappell,   674. 

V.  Chesapeake    &    O.    R.    Co., 
168,  176. 

V.  Clark,  1205. 

V.  Clifton,  414,  609,  643,  1146. 

V.  Davies,  498. 

V.  De  Lassus,  876. 

V.  Des  Moines,  452. 

V.  Durrer,  533. 

V.  Eubanks,  1322.      ' 

V.  Fletcher,  1203. 

V.  Fox,  1322. 

V.  Freed,  411. 

V.  Fulghum,  622. 

V.  Gardner,  469,  1260. 

V.  Gilbert,  510. 

V.  Guaranty  &  Indemnity  Co., 
1186. 

V.  Habersham,  253,  1158. 

V.  Hartley,  965. 

V.  Higgins,  1221. 

V.  Hughes,  431. 

V.  Hunt,  484. 

V.  Janney,  890. 

V.  Johnson,  1011. 

V.  Jones,  68,  171,  261,  420. 

V.  Lamar,  1252. 

V.  Logwood,  922. 

V.  McKenna,  1249. 

V.  Miller,  1072. 

V.  Mills,  148. 

V.  Muisbach,  842. 

V.  New  Orleans  &  S.  R.  Co., 
553. 


1394 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Jones  V.  Parker,  112. 

V.  Percival,  1028. 

V.  Perry,  307,  342,  695. 

V.  Phillips,  974,  1033. 

V.  Powell,  482. 

V.  Richardson,  1172. 

V.  Rigby,  1200. 

V.  Robinson,  1094. 

V.  Say,  211. 

V.  Sherrard,  75. 

V.  Smith,  586,  1244. 

V.  Swayze,  928,  929,  935. 

V.  Taylor,  265. 

V.  Tincher,  1247. 

V.  Towne,  697. 

V.  Tucker,  630. 

V.  Van  Bochove,  735,  736. 

V.  Walker,  168. 

V.  Walkup,  261. 

V.  Webster.  1174. 

V.  Westcomb,  340. 

V.  Winwood,  642. 

V.  Wood,  629,  630. 
Jons  V.  Harbison,  1046. 
Jordan  v.  Adams,  313-316. 

V.  Cheney,  1227. 

V.  Collins,  1112. 

V.  Garner,  231. 

V.  Kraft,  760. 

V.  Land,  1024. 

V.  McClure,  297. 

•V.  Neece,  46,  48. 

V.  Roach,  57. 

V.  Sayre,  1230. 

V.  Van  Epps,  441,  468. 
Jordeson  v.  Sutton,  669. 
Jorgenson  v.  Minneapolis  &  St.  L. 

Ry.  Co.,  1100. 
Joseph    Smith    Co.    v.    McGuiness, 

1282. 
Joslin  V.  Rhoades,  333. 
Joslyn  V.  Wyman,  1244. 
Josslyn  V.  Stone,  1307. 
Jourdain  v.  Fox,  1045. 
Journey's  Estate,  In  re,  606. 
Joy  V.  Adams,  1255. 

V.  Boston       Penny       Savings 
Bank,  759. 
Joyce  V.  Conlin,  730. 

V.  Williams,  586. 
Joyner  v.  Speed,  565. 

V.  Weeks,  90. 
Judge  of  Probate  v.  Stone,  1154. 
Judkins  v.  Woodman,  1211. 
Judy  V.  Thompson,  1239. 


Julia  Building  Ass'n  v.  Bell  Tele- 
phone Co.,  812. 

Jull  V.  Jacobs,  304. 

Jumel  V.  Jumel,  1248. 

Junction  Railroad  Company  v. 
Harris,  411,  500. 

June  V.  Purcell,  594,  890. 

Jungerman  v.  Bover,  854. 

Jupp  V.  Buckwell,  380. 

Justice  V.  Eddings,  1120. 

Jutte  V.  Hughes,  665. 

Juvenal  v.  Jackson,  1094. 


K. 


Kabler    v.    Worcester    Gas    Light 

Co.,  89. 
Kaes  v.  Gross,  1134. 
Kaime  v.  Harty,  978. 
Kain  v.  Fisher,  465,  522. 
Kamphouse  v.  Gaffner,  684,  746. 
Kana  v.  Bolton,  1028. 
Kane  v.  Desmond,  1112. 

V.  Gott,  258. 

V.  Mackin,  929. 
Kannady  v.  McCarron,  1168,  1199. 
Kanouse  v.  Stockbower,  891. 
Kansas    Cent.    Ry.    Co.    v.    Allen, 

728. 
Kansas   Mortgage   Co.    v.   Weyer- 
haeuser, 1302. 
Kansas,  N.  &  D.  Ry.  Co.  v.  Cuy- 

kendall,  815. 
Karish.  Ex  parte,  1128. 
Karker's  Appeal,  333. 
Karns  v.  Olney,  1083. 
Kaster  v.  McWilliams,  1125. 
Katz  V.  Kaiser,  585. 
Kauffelt  V.  Bower,  1287. 
Kauffman  v.  Griesemer,  664. 

V.  Peacock,  467. 

v.  Robey,  1087. 
Kay  V.  Connor,  60. 

V.  Oxley,  703. 

V.  Scates,  204,  211,  212. 

V.  Whittaker,  1265. 
Kea  V.  Robeson,  881. 
Kean  v.  Connelly,  392. 

V.  Hoffecker,    342. 
Kearny  v.  Kearny,  74. 
Keates  v.  Lyon,  766. 
Keating  v.  Cincinnati,  669,  672. 

V.  Condon,  111. 

V.  Craig.  1320,  1321. 

V.  Springer.  129,  687,  706. 
Keats  V.  Hugo,  706,  1031. 


TABLE  OF  CASES. 


1395 


[references  are  to  pages.] 


Keech  v.  Hale,  1197,  1204. 

V.  Sandford,  241. 
Keefer  v.  Schwartz,  628,  630. 
Keegan  v.  Cox,  1150. 
Keel  V.  Larkin,  511. 
Keeler  v.  Eastman,  564,  565,  579. 

V.  Keeler,  546. 

V.  Tatnell,  450. 

V.  Wood,  873. 
Keening  v.  Ayling,  765. 
Keep  V.  Miller,  258,  264. 
Keeton  v.  Keeton,  1004. 
Keil  V.  Healey,  1004. 
Keim  v.  Lindley,  619. 
Keith  V.  Swan,  1197. 

V.  Trapier,  481. 
Keithley  v.  Wood,  1180,  1182. 
Kehr  v.  Snyder,  1038. 
Kehrer  v.  Richmond  City,  816. 
Kell  V.  Healey,  1150. 
Kellenberger  v.  Boyer,  1302. 
Keller  v.  Ashford,  1217,  1220. 
Kelleran  v.  Brown,  1178. 
Kelley  v.  Jenness,  232. 

V.  Meins,  49,  331,  332. 

V.  Weston,  534. 

V.  Whitney,  1231. 
Kellog  V.  Piatt,  910. 
Kellogg  V.  Dickenson,  1255. 

V.  Dickinson,  698. 

V.  Hale,  211. 

V.  Ingersoll,  905. 

V.  Malin,  903,  906,  908,  914. 

V.  Robinson,  758. 

V.  Smith,  889,  1234. 
Kellum  V.  Berkshire  Life  Ins.  Co., 

906. 
Kelly  V.  Bloomingdale,  1298. 

V.  Dutch  Church,  98. 

V.  Hill,  871. 

V.  Kelly,  1286. 

v.  Leachman,  1177. 

V.  McGrath,  444,  468. 

V.  Robertson,  961. 

V.  Rosenstock,  926. 

V.  Searing,  1260. 

V.  Waite,  87. 
Kelsey's  Appeal,  396. 
Kelsey  v.  Remer,  904. 
Kelso's  Appeal,  466. 
Kelso  V.  Lorillard,  289,  307. 
Kemerer  v.  Bournes,  447. 
Kemp  V.  Bradford,  288. 

V.  Kemp,  507. 
Kempner  v.  Rosenthal,  936. 
Kendall  v.  Carland,  796. 


Kendall  v.  Honey,  482. 

V.  Mann,  231. 

V.  Moore,  153. 

V.  Powers,  1127,  1132. 

V.  Tracy,  1255. 
Kendrick  v.  Eggleston,  1287,  1291, 

1292. 
Kenebel  v.  Scrafton,  963,  964. 
Keniston  v.  Adams,  954. 
Kenley  v.  Hudelson,  1124,  1134. 
Kennard  v.  Kennard,  287,  288. 
Kennedy  v.  Burnap,  706. 

V.  Johnston,  457. 

V.  Kennedy,  429,  431. 

V.  Kingston,  640. 

V.  Lyell,  1119. 

V.  Minneapolis,  1072. 

V.  Moore,  1239. 

V.  Northrup.  1093. 

V.  Owen,  116,  750,  751. 

V.  Scovil,  876. 
Kenner  v.  American  Contract  Co., 

176,  180,  181. 
Kennett  v.  Plummer,  1194. 
Kenniston  v.  Leighton,  210. 
Kenny  v.  Udall,  413. 
Kent  V.  Gerhard,  1287,  1292. 

V.  Judkins,  721. 

V.  Lix,  695. 

V.  Mahaffey,  957. 

V.  Morrison,  332,  333,  618. 

V.  Taylor,  892. 

V.  Waite,  704. 

.V.  Welch,  97,  909. 
Kent  County  v.  Grand  Rapids,  980. 
Kentucky  Cent.  R.  Co.  v.  Kenney, 

751,  756,  758. 
Kenyon,  In  re,  305. 
Kenyon  v.  Kenyon,  429. 

V.  Lee,  307,  342. 
Keppel  V.  Bailey,  752. 
Kernan  v.  Griffith,  843. 
Kerngood  v.  Davis,  1308. 
Kirnochan  v.  New  York  Elevated 

R.  Co.,  674. 
Kerr  v.  Birnie,  930. 

V.  Couper,  879. 

V.  Day,  264,  1088. 

V.  Freeman,  861,  862. 

V.  Kingsbury,  552. 

V.  Nicholas,  554. 

V.  Russell,  919. 

V.  Verner,  616. 
Kerrick  v.  Morison,  1301. 
Kerrison  v.  Smith,  682. 
Kerse  v.  Miller,  1242. 


1396 


TABLE  OF  CASES. 


[refebences  aee  to  pages.] 


Kerwhaker  v.  Cleveland,  C.  &  C. 

R.  Co.,  588-590. 
Ketchin  v.  McCarley,  1132,  1133. 
Ketchum  v.  Crippen,  1248. 

V.  St.  Louis,  1282. 

V.  Walsworth,  381-383. 
Kettle  River  R.  Co.  v.  Eastern  Ry. 

Co.,  701,  757,  765. 
Kew  V.  Trainor,  162,  177. 
Key  V.  Jennings,  1008. 

V.  Snow,  1120. 

V.  Weathersbee,  304. 
Keyes  v.  Rines,  1133. 

V.  Wood,  1229,  1231. 
Keys  V.  Hill,  507. 

V.  Test,  243,  1045. 
Kickland  v.  Menesha  Woodenware 

Co.,  878. 
Kidder  v.  Rixford,  396,  397. 
Kidgill  V.  Moore,    731. 
Kidwell  V.  Brummagim,  622,   648. 
Kieffer  v.  Imhoff,  708. 
Kiernan  v.  Blackwell,  1266. 
Kiersted  v.   Orange  &   A.   R.   Co., 

798. 
Kiewert  v.  Anderson,  1126. 
Kilburn  v.  Adams,  1002,  1025,  1026. 
Kile  v.  Giebner,  548. 
Kille  v.  Ege,  931. 
Killebrew  v.  Hines,  1201. 
Killinger  v.  Reidenhauer,  445,  446. 
Killmer  v.  Wuchner,  75,  389,  397. 
Killmore  v.  Howlet't,  530. 
Killough  V.  Hinton,  1058. 
Kilpatrick  v.  Barron,  632. 

V.  Kilpatrick,  1290. 
Kimball  v.  Bible  Soc,  628. 

v.  Blaisdell,  1045. 

V.  Bryant,  916. 

V.  Cochecho  R.  Co.,  714. 

V.  Cross,  89. 

V.  Ellison,  943. 

V.  Hutchins,  1114. 

V.  Ladd,  1024. 

V.  Lockwood.  1204,  1205. 

V.  Mcintosh,  731. 

V.  Rowland,  175. 

V.  Sattley,  522,  529,  1171. 

V.  Second      Congregational 
Parish  in  Rowley,  698. 

V.  Story,  954. 

V.  Walker,  95.  877,  878. 
Kimm  v.  Griffin,  760. 
Kimpton  v.  Bellamyes,  748. 
Kincaid's  Appeal,  697-699. 


Kincaid    v.    Indianapolis    Natural 
Gas  Co.,  813. 

V.  McGowan,  517. 
Kindersley  v.  Jervis,  1322. 
King  V.  Brigham,  1014. 

V.  Bullock,  402. 

V.  Burchell,  1136. 

V.  Bushnell,  437. 

V.  Carmichael,  389,  390. 

V.  Cole,  50. 

V.  Cushman,  240. 

V.  Dunham,  271. 

V.  Gilson,  912. 

V.  Grafton,  191. 

V.  Housatonic  R.  Co.,  1204. 

V.  Hyatt,  402. 

V.  Jones,  916. 

V.  Kerr,  915. 

V.  King,  45. 

V.  McCarthy,  512. 

V.  McCully,  1261. 

V.  Mason,  1267. 

V.  Miller,  560,  561,  564,  565. 

V.  Murphy,  735,  736. 

V.  Nutall,  1145. 

V.  Paulk,  1313. 

V.  Rea,  59,  60. 

V.  Rowan,  401. 

V.  Savage,  61. 

V.  Scoggin,  271. 

V.  Smith,  1001,  1211. 

V.  State    Mut.    Fire   Ins.    Co., 
1198,  1209,  1210. 

V.  Stetson,  425. 

V.  Tiffany,  659. 

V.  Wells,  872,  1008. 

V.  Wight,  758-760. 

V.  Young  Men's  Ass'n,  1292. 
Kingdon  v.  Nottle,  916. 
Kingman  v.  Harmon,  334. 

V.  Higgins,  509. 

V.  Sinclair,  1239. 

V.  Sparrow,  429. 
Kings    County    Fire    Ins.    Co.    v. 

Stevens,  895. 
Kingsbury  v.  Burnside,  224,  225'. 

V.  Collins,  524. 
Kingsley    v.    Gouldborough    Land 
Improvement  Co.,  715. 

V.  Hillside   Coal   &   Iron   Co., 
520. 

V.  Holbrook,  528,  530. 

V.  Smith,  502. 
Kinnear  v.  Lowell,  1248. 
Kinney  v.  Dexter,  219. 

V.  Ensminger,  1291. 


TABLE  OF  CASES. 


1397 


[references  are  to  pages.] 


Kinney  v.  Hickox,  266. 

V.  Hooker,  719,  720. 
Kinports  v.  Boynton,  1309. 
Kinsell  v.  Billings,  547. 
Kinsey  v.  Minnick,  856. 

V.  Woodward,  456. 
Kinsley  v.  Ames,  149,  155. 

V.  Scott,  1267. 
Kinsolving  v.  Pierce,  482. 
Kintner  v.  Jones,  222. 
Kip  V.  Hirsh,  1012. 
Kirby  v.  Tallmadge,  1088. 
Kircher  v.  Schalk,  1213. 
Kirk  V.  Dean,  452. 

V.  Hamilton,   1046,   1048. 

V.  Mattier,  182. 
Kirkland  v.  Cox,  205. 
Kirkman  v.  Handy,  654. 
Kirkpatrick's  Will,  In  re,  959. 
Kirkpatrick  v.  Clark,  219. 

V.  Mathiot,  400. 

V.  Peshine,  763. 
Kirkwood  v.  Domnan,  408. 

V.  Thompson,  1199. 
Kissam  v.  Dierkes,  641. 
Kissel  V.  Lewis,  1022. 
Kister  v.  Reeser,  704,  874,  876. 
Kitchen  V.  Burgwin,  504,  1123. 
Kitchen  v.  Pridgen,  146,  147. 
Kittaning     Academy     v.     Brown, 

1006,  1012. 
Kitten  V.  Missisqiioi  R.  Co.,  1073. 
Kittermaster  v.  Brossard,  1276. 
Kittle  V.  Pfeiffer,  893. 

V.  St.  John,  853. 

V.  Van  Dyck,  425. 
Kettredge  v.  Proprietors  of  Locks 
&  Canals,  500. 

V.  Woods,  526,  555. 
Kitzmiller  v.  Van  Rensselaer,  450. 
Kivett  V.  McKeithan,  682. 
Kleber  v.  Ward.  802. 
Kleeman  v.  Frisbie,  1232. 
Kleiman  v.  Gieselman,  510. 
Klein  v.  Gehrung,  1026. 
Klenk  v.  Walnut  Lake,  978. 
Klepworth  v.  Dressier,  1277. 
Klie  V.  Van  Broock,  568,  578. 
Kline  v.  Jacobs,  798. 

V.  Kline,  463. 
Kling  V.  Ballentine,  435. 
Klinkener  v.   School  Directors  of 

McKeesport,  972. 
Kluse  V.  Sparks,  527. 
Klutts  V.  Klutts,  434. 
Knapp  V.  Bailey,  1085,  1179,  1180. 


Knapp  V.  Knapp,  959. 

V.  Marlboro,  909. 

V.  Windsor,  380. 
Knapstein  v.  Tinette,  1176. 
Kneeland  v.  Schmidt,  790. 

V.  Van  Valkenbiirg,  894,  895. 
Knell    V.    Green    Street    Building 

Ass'n,  1313. 
Knener  v.  Lang,  1009. 
Knight  V.  Dyer,  1178. 

V.  Glasscock,  1112. 

V.  Heaton,  817. 

V.  Indiana   Coal    &    Iron   Co., 
138,  520. 

V.  Knight,  1010. 

V.  McKinney,  1255. 

V.  Mahoney,  170. 

V.  Ray,  1229. 

V.  Simmonds,  769,  770. 

V.  Thayer,  1044,  1080. 

V.  Yarlarough,  617. 
Knolle's  Case,  778,  779. 
Knons  V.  Barnhart,  399. 
Knot   V.    Sheperdstown   Mfg.    Co., 

1284. 
Knouff  V.  Thompson,  1046. 
Knowles  v.  Dodge,  644. 

V.  Dow,  825. 

V.  Harris,  393. 

V.  Lawton,  1251. 

V.  Rablin,  1241. 

V.  Sen,  1322. 

V.  Toothaker,  889. 
Knowlton  v.  Walker,  1240. 
Knox's  Estate,  944. 
Knox  V.  Armistead,  1272. 

V.  Brady.  449,  504. 

V.  Clark,  936. 

V.  Easton,  1199. 

V.  Haug,  1154. 

V.  Knox,  222. 
Knox  County  v.  Brown,  1091. 
Koch  V.  Briggs,  1274. 

V.  Roth,  1289. 
Kocourek  v.  Marak,  879. 
Koeffler  v.  Koeffler,  331. 
Koen  V.  Bartlett.  562. 
Koenigs  v.  Jung,  728. 
Koon  V.  Tramel,  1089.  1094. 
Koons  V.  Groves,  1178. 
Koplitz  V.  Gustavus,  87. 
Korner  v.  Rankin,  1017. 
Kortright  v.  Cady,  1236,  1237. 
Kostander  v.  Pierce,  914. 
Konvalinka  v.   Schlegel,  453,  454, 
456. 


1398 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Kramer  v.  Carter,  908,  911. 

V.  Cook,  791. 

V.  Trustees  of  Farmers'  &  Me- 
chanics' Bank  of  Steuben- 
ville,  1186. 
Kraner  v.  Chambers,  1310. 
Kreb's  Estate,  247. 
Kremer  v.  Walton,  1300. 
Kretzschmar  v.  Meehan,  827. 
Kreuger  v.  Schultz,  1119. 
Kribbs  v.  Alfred,  1173. 
Krider  v.  Ramsay,  113,  132. 
Krier's  Private  Road,   1021,   1029. 
Krueger  v.  Ferrant,  102. 
Kruschke  v.  Stefan,  387. 
Krutsinger  v.  Brown,  1267. 
Kucheman  v.  Chicago,  C.  &  D.  Ry. 

Co.,  811. 
Kuecken  v.  Voltz,  704,  736. 
Kuhlman  v.  Hecht,  714,  1029. 
Kumpe  V.  Coons,  283. 
Kunckle  v.  Wynick,  95. 
Kunselman  v.  Stine,  484. 
Kuntzleman's  Estate,  213,  248,  313. 
Kurtz  V.  Hoke,  1027. 
Kutz  V.  McCune,  906,  907. 
Kyner  v.  Kyner,  1249. 


L. 


Labbe's  Heirs  v.  Abat,  385. 
Laberee  v.  Carleton,  876. 
Lachman  v.  Deisch,  93. 
Lackey  v.  Holbrook,  1199. 

V.  Seibert,  1315,  3318. 
Lackman  v.  Deish,  674. 
Lacustrine  Fertilizer  Co.  v.  Lake 
Guano   Fertilizer   Co.,   516,   517, 
543. 
Lacy  V.  Pixler,  1150,  1151. 
Ladd's  Will,  960. 
Ladd  V.  Boston,  701,  763,  764,  1070. 

V.  Campbell,  1233. 

V.  Ladd,  626. 

V.  Noyes,  915. 

V.  Putnam,  1259. 

V.  Smith,  856. 

V.  Wiggin,  1196. 
Lade  v.  Shepherd,  810. 
Ladew  v.  Paine,  927. 
Ladue,  In  re,  893. 

V.  Detroit,  1187. 
Lafferty  v.  Lafferty,  868. 

V.  Milligan,  904. 
Lagon  V.  Badollet,  1290. 
Lahere  v.  Luckey,  1031. 


Lahiff's  Estate,  In  re,  510. 

Lahr  v.  Metropolitan  Elevated  R. 

Co.,  815. 
Laidler  v.  Young's  Lessee,  67. 
Lardley  v.  Aiken,  1314. 
Laird  v.  Moonan,  1298. 

v.  Scott,  1115,  1116. 
Lake  v.  Bender,  384. 

v.  Craddock,  375. 
'    V.  Gaines,  1322. 

v.  Gray,  452. 

V.  Page,  508,  509. 

V.  Shumate,  1244. 
Lake  Brie  &  W.  Ry.  Co.  v.  Priest, 
758. 

V.  Whitham,  972. 
Lake  View  v.  Le  Bahn,  977. 
Lakeman  v.  Burnham,  826. 
Lakin  v.  Lakin,  465. 
Lamar  v.  Hale,  1094. 

v.  McNamee,  855. 

v.  Scott,  470. 

V.  Sheppard,  1129. 
Lamb  v.  Crosland,  1021,  1023. 

V.  Miller,  176. 

V.  Pierce,  1085. 

V.  Rickets,  892. 

V.  Sherman,  1308. 
Lambden  v.  Sharp,  923. 
Lambe  v.  Drayton,  331. 

V.  Manning,  684. 
Lambert  v.  Estes,  910. 

V.  Livingston,  1261. 

v.  Paine,  49. 

V.  Smith,  860. 

v.  Thwartes,  639,  640. 
Lammert  v.  Lidwell,  589. 
Lament  v.  Cheshire,  1084,  1098. 
Lamport  v.  Haydel,  1141. 
Lampet's  Case,  339,  341,  342. 
Lampman  v.  Milks,  705-707,  709. 
Lamprey  v.  State,  596. 
Lamson  v.  Clarkson,  124. 
Lancashire  v.  Lancashire,  624. 

V.  Mason,  124. 
Lancaster     v.     Connecticut     Mut. 
Life  Ins.  Co.,  220. 

V.  Dolan,   213,   618,   877,   1114- 
1116. 
Lancaster  Bank  v.  Myley,  46. 
Lancaster  County  Bank  v.  Stauf- 

fer,  412,  498,  499,  1308. 
Landell  v.  Hamilton,  753,  765,  769, 

770. 
Lander  v.  Hall,  576. 
Landes  v.  Brant,  862. 


TABLE  OP  CASES. 


1399 


[references  are  to  pages.] 


Landon  v.  Piatt,  539. 
Lane  v.  Courtney,  434. 

V.  Debenham,  624. 

V.  Erskine,  1266. 

V.  Ewing,  223,  224. 

V.  Hitchcock,  1213. 

V.  King,  1204. 

V.  Philips,  1122,  1123. 

V.  Shears,  1177. 

V.  Thompson,  578. 
Lanfair  v.  Lanfair,  1171. 
Lang's  Estate,  957. 
Lang  V.  Hitchcock,  499. 

V.  Smith,  930. 

V.  Waring,  255. 
Langdon  v.  Keith,  1229. 

V.  New  York,  591. 

V.  Palmer,  1211. 

V.  Paul,  1212. 

V.  Sherwood,   219,  843,  844. 

V.  Templeton,  1015,  1017. 
Langenour  v.  Shanklin,  844. 
Langley  v.  Baldwin,  315. 

V.  Chapin,  173. 

V.  Hammond,  703. 

V.  Langley,  1153,  1154. 
Langworthy  v.  Coleman,  883. 
Lanier  v.  Booth,  1021,  1026. 
Lanigan  v.  Kille,  98. 
Lannay  v.  Wilson,  1264. 
Lanning  v.  Carpenter,  1306. 
Lansing  v.  Goelet,  1257. 
Lansing  Iron  &  Engine  Works  v. 

Walker,  537. 
Lantsberry  v.  Collier,  647. 
Lapere  v.  Luckey,  651. 
Lardner  v.  Williams,  629,  879. 
Large's  Case,  1137. 
Large  v.  Van  Doran,  1185. 
Larkin  v.  Avery,  88,  89,  142. 

V.  McMullin.  1298. 

V.  Wilson,  1016. 
Larkins  v.  Larkins,  958. 
Larman  v.  Huey,  401. 
Larned  v.  Bridge,  641. 

V.  Hudson,  139. 
Larsen  v.  Peterson,  689,  707,  713. 
Larson  v.  Fitzgerald,  818. 

V.  Reynolds,  1132,  1266. 
Larwell  v.  Stevens,  1008. 
Larwerre  v.  Rains,  292. 
Lasala  v.  Holbrook,  690,  1032. 
Lash  V.  Lash,  383. 
Lass  V.  Sternberg,  1275. 
Lassell  v.  Reed,  557. 


Late  Corporations,  etc.,  v.  United 

States,  273. 
Latham  v.  Atwood,  522. 

V.  McLain,  434. 
Lathrop  v.  Eisner,  705,  876. 

v.  Nelson,  1261. 

v.  Singer,  1130. 
Lattimer  v.  Livermore,  687. 
Laudy,  In  re,  946. 
Lauffer  v.  Cavett,  1306. 
Laughlin  v.  Braley,  1171. 

v.  Calumet  &   Chicago  Canal 
&  Dock  Co.,  930. 

V.  Fream,  866. 

v.  Hawley,  1306. 
Lavalle  v.  Strobel,  403,  823. 
Lavenson    v.    Standard    Soap   Co., 

1211-1213. 
Law  v.  Douglass,  331. 

V.  Law,  959. 

V.  Long,  1149. 
Lawes  v.  Bennett,  266. 

V.  Lumpkins,  412. 
Lawlor  v.  Holohan,  329. 
Lawrence's  Estate,  345,   617,   618, 

647,  6id. 
Lawrence  v.  Brown,  466,  484. 

V.  Combs,  696. 

V.  Fairhaven,  1022. 

V.  French,   130,   786,   789,  792, 
793. 

V.  Jenkins,  694. 

V.  Knap,  1227. 

V.  Lawrence,  67,  454,  455. 

V.  Miller,  484. 

V.  Montgomery,  915,  916. 

V.  Senter,  915. 

V.  Smith,  348,  352,  361. 

V.  Springer,  682. 

V.  Stratton,  935. 

V.  Whitney,  754,  755. 
Lawson  v.  Morton,  474. 
Lawton  v.  Adams,  389. 

V.  Fitchburg  R.  Co.,  694. 

v.  Gordon,  549,  1086,  1112. 

V.  Rivers,  715. 

V.   Salmon,   541,   547. 

V.  Steele,  601. 
Lawyer  v.  Smith,  958. 
Lay  V.  Lay.  930. 

Layne  v.  Ohio  River  R.  Co.,  590. 
Layson  v.  Grange.  1125. 
Layton  v.  Butler,  481. 
Lazear  v.  Porter,  448. 
Leach  v.  Francis,  1113. 

V.  Leach,  438. 


1400 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Leach  v.  Thomas,  571. 
Leak  v.  Randall,  453. 
Leake  v.  Hayes,  396,  397. 

V.  Robinson,  348,  360,  36L 
Learned  v.  Cooley,  554. 

V.  Cutler,  452. 
Leathers  v.  Gray,  57. 
Leavenworth  Lodge  v.  Byers,  650 
Leavenworth,    L.    &   G.    R.    Co.   v, 

United  States,  835. 
Leavitt  v.  Eastman,  1212,  1213. 

V.  Lamprey,  439,  451,  866. 

V.  Leavitt,  87,  142-144. 

V.  Reynolds,  1228. 
Leazure  v.  Hillegas,  1051,  1157. 
Lechmere,  In  re,  327. 
Lecompte  v.  Toudouze,  584. 
Ledgerwood  v.  Gault,  929. 
Lee  V.  Bermingham,  1097. 

V.  Bumgardner,  516,  517. 

V.  Gaskell,  551,  553. 

V.  Lee,  1280,  1282. 

V.  Lindell,  440,  441,  467. 

V.  Miller,  1124. 

V.  Payne,  781. 

V.  Richmond,  934. 

V.  Risdon,  548,  551. 

V.  Simpson,  627,  628. 

V.  Stone,  336,  1185,  1244,  1245, 
1309. 

V.  Summers,  843. 
Leeds  v.  Gifford,  1244. 

V.  New  Radnor,  805. 

V.  Wakefield,  641. 
Leeper  v.  Lyon,  1291. 
Lefebore,  In  re,  267. 
Lefevre's  Appeal,  388. 
Lefevre  v.  Lefevre,  455. 
Lefferson  v.  Dallas,  1310. 
Legg  V.  Horn,  1021,  1027. 
Leggate  v.  Clark,  1153,  1154. 
Leggett  V.  Doremus,  '611,  642. 

V.  Firth,  332. 

V.  Perkins,  211. 
Lehigh  Valley  R.  Co.  v.  McFarlan, 

1021,  1024. 
Lehman  v.  Collins,  1285. 
Lehndorf  v.  Cope,  57,  288. 
Leicester  v.  Biggs,  208. 
Leidlein  v.  Meyer,  1031. 
Leigh  V.  Dickson,  398. 

V.  Harrison,  1141. 

V.  Jack,  896. 

V.  Taylor,  549. 
Leighton  v.  Leighton,  288. 

V.  Orr,  879. 


Leiper's  Appeal,  266. 
Leiper  v.  Thomson,  258. 
Leiskman  v.  White,  792,  793. 
Leitch  V.  Boyington,  786,  790. 
Leitensdorfer  v.  Delphy,  46. 
Leiter  v.  Pike,  118,  120. 
Leland  v.  Adams,  49. 

V.  Loring,  1277. 
Lemage  v.  Goodban,  961. 
Lemaitre  v.  Davis,  691. 
Leman  v.  Whitley,  228. 
Lemay  v.  Johnson,  1322. 
Lemayne  v.  Stanley,  945. 
Lembeck  v.  Nye,  596,  826,  891. 
Lemmon  v.  Webb,  532,  1029. 
Lemon  v.  Graham,  45. 
Lenfers  v.  Henke,  426,  473. 
Lennig's  Estate,  362. 
Lennig  v.  Ocean  City  Ass'n,  718. 

V.  White,  882. 
Lennox  v.  Hendricks,  584. 
Lenoir  v.  South,  1018. 
Lenox  v.  Reed,  1266. 
Lent  V.  Howard,  258. 
Leonard  v.  Burr,  194,  341,  362. 

V.  Clough,  545. 

V.  Leonard,  476,  714,  1022. 

V.  Quinlan,  584. 

V.  Villars,  1266. 

V.  White,  897. 
Lerch  v.  Oberly,  261. 
Lerned  v.  Morrill,  888. 
Lesley  v.  Randolph,  147,  148. 
Lessen  v.  Goodman,  1127. 
Lester  v.  Young,  565. 
Letts  V.  Kessler,  651,  655. 
Lenders  v.  Thomas,  1099. 
Levering  v.  Bimel,  1156. 

V.  Heighe,  461. 

V.  Philadelphia,  G.  &  N.  R.  Co., 
1072. 
Levett  V.  Withrington,  907. 
Levey  v.  Dyess,  573. 
Levi  V.  Earl,  416. 
Levitzky  v.  Canning,  127. 
Levy  V.  Brothers,  651. 

V.  Cox,  1048. 

V.  McCartee,  1159. 

V.  Yerga,  1014. 
Lewellin  v.  Mackworth,  220. 
Lewes  v.  Ridge,  184,  915. 
Lewis  V.  Anderson,  1184. 

v.  Barnhart,  1013. 

V.  Bingham,  880. 

V.  Coffee  County,  827. 

V.  Darling,  1281. 


TABLE  OF  CASES. 


1401 


[references  are  to  pages.] 


liewis  V.  Day,  1217. 

V.  Gainesville,  11. 

V.  Gollner,  766. 

V.  Hawkins,  242. 

V.  Henderson,  1289. 

V.  Hinman,  1083. 

V.  James,  473. 

V.  Johns,  384. 

V.  Jones,  556,  557,  567,  810. 

V.  Lewellyn,  630. 

V.  Lyman,  534. 

V.  McGee,  867. 

V.  McNatt,  522. 

V.  Meserve,  443. 

V.  Mew,  1099. 

V.  Nangle,  1241. 

V.  Ocean    Navigation    &    Pier 
Co.,  551. 

V.  Payn,  881. 

V.  Payne,  792. 

V.  Portland,  973. 

V.  Rees,  47,  1115. 

V.  Rosier,  544,  545. 

V.  Schwenn,  1256. 

V.  Smith,    266,    446,    447,    455, 
1261,  1262. 

V.  Stein,  658. 

V.  Watson,  919,  930. 

V.  Wells,  1270. 

V.  White,  1128. 
Lewton  v.  Hower,  1129. 
Ley  V.  Peter,  140. 
Libbey  v.  Davis,  1126. 
Libby  v.  Chase,  417. 
Lichtenthaler  v.  Thompson,  802. 
Liddel  v.  McVickar,  1058. 
Liddy  v.  Kennedy,  191. 
Lide  V.  Hadley,  686,  897. 

V.  Reynolds,  482. 
Lienow  v.  Ritchie,  93. 
Life  Ass'n  of  America,  In  re,  1201. 
Liford's  Case,  525,  529,  741. 
Liggett   Spring  &  Axle   Co.'s  Ap- 
peal, 1094. 
Liggins  V.  Inge,  673,  738. 
Light  V.  Light,  457. 
Lillibrldge    v.    Lackawanna    Coal 

Co.,  516.  517. 
Lilly  V.  Palmer,  1252. 
Lincoln  v.   Burrage,  756,   760. 

V.  Davis,  602,  825. 

V.  Lincoln,  49. 
Lincoln    &    Kennebeck    Bank    v. 

Drummond,  181. 
Lindeman  v.  Lindsey,  736. 
Linden  v.  Graham,  484. 


Linden    Steel   Co.   v.   Rough   Run 

Mfg.  Co.,  1299. 
Lindley  v.  Dakin,  906. 

V.  Groff,  1012. 

v.  Martindale,  1090. 

V.  O'Reilly,  221,  615. 
Lindsay  v.  Jones,  717. 

V.  Springer,  583. 

V.  Winona   &    St.    P.    R.    Co., 
525. 
Lindsay    Irrigation    Co.    v.    Mehr- 

tens,  717. 
Lindsey  v.  Brewer,  511. 

v.  Leighton,  103. 

V.  Lindeman,  738. 

V.  Lindsey,  1153. 
Lindsley  v.  Lamb,  868. 
Lines  v.  Darden.  620,  637. 
Lingan  v.  Carroll,  955. 
Link  V.  Edmondson,  432,  433. 
Linkenhoker  v.  Graybill,  732. 
Linn  v.  Patton,  1306,  1307. 

V.  Ross,  136. 
Linnell  v.  Lyford,   1216. 
Linney  v.  Wood,  889. 
Linscott  V.  Buck,  265. 
Linthicum  v.  Coan,  1034. 

V.  Ray,  685. 
Linton  v.  Brown,  929. 

V.  Crosby,  1122. 

V.  Hart,    781.    785,    792. 

V.  Laycock,  291,  334. 
Linzee  v.  Mixer,   765,  769,  770. 
Lippencott  v.  Allander,  12. 

V.  Davis,  315. 

V.  Lippincott,  616. 

v.  Ridgeway,  617. 

V.  Wikoff,  625,  949. 
Lippitt  V.  Huston,  57. 
Lipscomb  v.  De  Lemos,  433. 

V.  McClellan,  1006. 
List  V.  Hornbrook.  693. 
Litchfield  v.  Cudworth,  411. 

V.  Sewell,  1000. 

V.  White,  241. 

V.  Wilmot,  817. 
Littauer  v.  Houck,  1088. 
Little's  Appeal,  334. 
Little  v.  Bennett.  634. 

V.  Birdwell,   171. 

v.  Bishop,  1120. 

V.  Downing,  1008. 

V.  McGuire.  588. 

V.  Martin,  798. 

V.  White,  923. 

V.  Wilford,  250. 


1402 


TABLE    OF   CASES. 


[references  are  to  pages.] 


Little  V.  Woodward,  1122. 

Little   Falls  Water  Power   Co.  v. 

Mahan,  180,  181. 
Little  Rock  v.  Wright,  977. 
Littlefield  v.  Crocker,  450. 

V.  Getchell,  917. 
Littlejohn  v.  Edgerton,  1135. 
Littler  v.  Lincoln,  976,  977. 
Littleton  v.  Addington,  641. 

V.  Littleton,  444,  445. 
Lively  v.  Paschal,  462. 
Livermore  v.  Aldrich,  230. 

V.  Boutelle,  1195. 
Liverpool  Wharf  v.  Prescott,  584, 

587. 
Livingston,  In  re,  245. 

V.  Cochran,  482. 

V.  Ketchum,  747. 

V.  Livingston,  59. 

V.  McDonald,  664,  665. 

V.  Mildrum,  1260. 

V.  Reynolds,  560. 

V.  Tanner,  150. 

V.  Ten  Broeck,  748. 
Lloyd  V.  Attwood,  1285. 

V.  Carew,  350. 

V.  Conover,  441. 

V.  Hart,  260. 

V.  Hough,  798,  799. 

V.  Passingham,  214,  217. 

V.  Spillet,  228-230. 

V.  Tench,  987. 
Lobdell  V.  Hayes,  434. 
Lock  V.  Fulford,  1222. 

V.  Furze,  98. 
Lockart  v.  Worthington,  616. 
Locke  V.  Caldwell,  1255. 

V.  Frasher,  124. 

V.  Hale,  906. 

V.  Motley,  602,  826. 

V.  Whitney,  1002. 
Lockett  V.  Hill,  1269. 
Lockhard  v.  Beckley,  1112. 

V.  Geir,  680. 

V.  Vandyke,  375,  376. 
Lockridge  v.  Mace,  356,  359. 
Lockwood  V.  Marsh,  1248. 

V.  Mildeberger,  631. 

V.  Stradley,  622. 

V.  Sturdevant,  900. 
Lockwood  Co.  v.  Lawrence,  659. 
Lockyer  v.  Savage,  1140. 
Loddington  v.  Kime,  295,  300. 
Lodge  V.  Patterson,  390. 

V.  White,  108. 
Loebenthal  v.  Raleigh,  618. 


Loflin  V.  Cobb,  1018. 
Loftis  V.  Loftis,  1129. 
Logan  V.  Gardner,  1147,  1151. 

V.  Moulder,  912,  916. 

V.  Phillips,  461. 

V.  Simmons,  495. 
Lokerson  v.  Stillwell,  1180. 
Lomas  v.  Wright,  340. 
Lomax  v.  Bird,  1241. 
Lombard    v.    Chicago    Sinai    Con- 
gregation, 264-266. 

V.  Culbertson,  1082. 
London  v.  Greyne,  567. 

V.  Riggs,  704,  714,  715,  721. 
London  &  N.  W.  Ry.  Co.  v.  Buck- 
master,  679. 

V.  West.  123. 
London    &    San    Francisco    Bank 

V.  Bandurance,  1188. 
London  &  S.  W.  Ry.  Co.  v.  Gomm, 

346,  353,  764. 
Long  V.  Blackball,  351. 

V.  Buchanan,  682,  683. 

V.  Fitzsimmons,   101,  571. 

V.  Fuller,  858. 

V.  Georgia     Pacific     Ry.     Co., 
1158. 

V.  Gill,  720. 

V.  Hines,  1174. 

V.  Kansas     City     Stock- Yards 
Co.,  482. 

V.  Long,  248. 

V.  McLanahan,  1300. 

V.  Moler,  908. 

V.  Moore,  164. 

V.  Mostyn,  504. 

V.  Richards,  1202,  1215. 

V.  Swindell,  159. 

V.  White,  414. 

V.  Williams,   1144. 
Long    Island    R.    Co.    v.    Conklin, 

1044. 
Longfellow  v.   Barnard,   1250. 
Longhead  v.  Phelps,  360. 
Lonvalle  v.  Menard,  396. 
Looker  v.  Peckwell,  1172. 
Loomis  V.  Bedel,  911. 

V.  Brush,  1146. 

V.  Gerson,  1130. 

V.  Knox,  1241. 

V.  McClintock,   632. 

V.  O'Neal,  534. 

V.  Pingree,  394. 

V.  Second     German     Building 
Ass'n,  1311. 
Lord  V.  Crowell,  1195. 


TABLE  OF  CASES. 


1403 


[references  are  to  pages.] 


Lord  V.  Langdon,  652. 

V.  Lord,   459. 

V.  Morris,  1256. 

V.  Wilcox,  1292. 

V.  Wormwood,  598,  696. 
Lord  Say  &  Seal  v.  Jones,  312. 
Lorillard  v.  Coster,  255,  256. 
Loring  v.  Arnold,  288,  307. 

V.  Bacon,  554,  726. 

V.  Blake,  345,  349,  353. 

V.  Cooke,  1243. 

V.  Eliot,  229,  271,  312,  315. 

V.  Norton,  889. 
Lorings  v.  Marsh,  612. 
Los  Angeles  Cemetery  Ass'n  v.  Los 

Angeles,  978. 
Losee  v.  Buchanan,  666. 
Losey  v.  Simpson,  1231. 
Lothrop  V.  Foster,  451,  480,  866. 

V.  Thayer,  571,  572. 
Loubat  V.  Nourse,  442. 
Louden  v.  Blythe,  927. 
Loughborough    v.    Loughborough, 

258. 
Loughran  v.  Ross,  551,  552. 
Loughridge  v.  Bowland,  1086. 
Louisville  Banking  Co.  v.  Leonard, 

1185,  1186. 
Louisville,  N.  A.  &  C.  Ry.  Co.  v. 
Malott,  719. 

V.  Shanklin,  818. 
Louisville,  St.  L.  &  T.  Ry.  Co.  v. 

Liebfried,  810. 
Louisville  &  F.  R.  Co.  v.  Ballard, 

589. 
Louisville  &  N.  R.  Co.  v.  Coving- 
ton, 173,  735,  737. 

v.  Koelle,  686. 

V.  Mossman,  689,  1031. 

V.  Philyaw,  1002. 

V.  Quinn,  737. 
Lounsberry  v.  Snyder,  127. 
Lounsbury  v.  Norton,  1086. 
Love  V.  Edmonston,  140,  141. 

v.  Johnston,   970. 

V.  Law,  1322. 

V.  Morrill,  582. 

V.  Robertson,  384. 

V.  Sierra  Nevada  Lake  &  Min. 
Water  Co.,  938,  1282,  1284. 
Lovelace  v.  Carpenter,  587. 
Lovell  V.  Cragin,  1228. 

V.  Frost,  1000. 
V.  Quitman,  959. 

V.  Smith,  735,  737. 
Loverin  v.  Walker,  688. 


Lovering  v.  Lovering,  95,  96,  349, 
361. 

V.  Worthington,  345. 
Lovett  V.  Farnham,  246. 

V.  Taylor,  228,  235. 
Loving  V.  Hunter,  239. 
Low  V.  Anderson,  1132. 

V.  Burron,  79,  350. 

V.  Elwell,  156. 

V.  Graff,  231. 

V.  Pew,   1173. 

V.  Pratt,  1099. 

V.  Schaffer,  1002. 

V.  Tibbetts,  892,  895. 
Lowe  V.  Lowe,  442. 

V.  Peers,  170. 
Lowell  V.  Spaulding,  104. 
Lowell    Sav.    Institute    v.    Lowell, 

767. 
Lowenberg  v.  Bernd,  554. 
Lowman  v.  Lowman,  1251. 
Lowndes  v.  Norton,  579. 

V.  Wicks,  585,  586. 
Lownsdale  v.  Gray's  Harbor  Boom 

Co.,  828. 
Lowry  v.  Fisher,  453,  1112. 

V.  Howard,  878. 

V.  Muldrow,  361. 

V.  Steele,  494. 

V.  Wright,  1316. 
Loyless  v.  Blackshear,  59. 
Lozo  V.  Sutherland,  1128. 
Lubbock  V.  McMann,  1125,  1126. 
Lucas  V.  Brandreth,  47. 

V.  Brooks,  125,  147. 
Luce  V.  Carley,  891,  892,  1012. 

V.  Moorehead,  1171. 

V.  Stubbs,  480. 
Lucy  V.  Levington,  915. 

V.  Tennessee  &  C.  R.  Co.,  1002. 
Ludlow  V.  Ludlow,  946,  957. 
Luffberry's  Appeal,  262. 
Lufkin  V.  Zane,  103,  104. 
Luker  v.  Dennis,  762,  765. 
Lumpkin  v.  Adams,  1079. 
Lund  V.  Lund,   1177,  1178. 
Lunsford   v.    La   Motte   Lead   Co., 
923. 

V.  Turner,  125. 
Lunt  V.  Lunt,  1230. 
Luntz  V.  Greve,  493,  1145. 
Lurman  v.  Hubner,  358. 
Lushington  v.  Bolders,  578.  579. 
Luther  v.   Arnold,   393. 

V.  Winnisimet  Co.,  955. 
Lutkins  v.  Leigh,  1245. 


1404 


TABLE  OF  CASES. 


[KEFERENCES    ABE    TO    TAGES.] 


Lutterloh  v.  Cedar  Keys,  813,  979, 

980. 
Lutwich  V.  Mitton,  208. 
Luxford  V.  Cheeke,  291. 
Lybe's  Appeal,  667,  668. 
Lycoming  Fire  Ins.  Co.  v.  Jackson, 

1208. 
Lycoming    Gas    &    Water    Co.    v. 

Moyer,  1073. 
Lyde  v.  Russell,  551. 
Lydecker  v.  Bogert,  1195. 
Lydick  v.  Baltimore  &  O.  Ry.  Co., 

756. 
Lyken's  Valley  Coal  Co.  v.  Dock, 

517. 
Lyle  v.  Richards,  18,  67,  295. 
Lyman  v.  Hale,  515,  532,  1223. 
Lynch  v.   Allen,   1036. 

V.  Baldwin,  127. 

V.  Cox,  1004. 

V.  Hancock,  1236. 

V.  Livingston,  852,  869. 
Lynde  v.  Hough,  113. 
Lynn's  Appeal,   562. 
Lynn  v.  Mt.  Savage  Iron  Co.,  753. 
Lyon  V.  Alley,  1320,  1321. 

V.  Cunningham,  139. 

V.  Fishmongers'  Co.,  597. 

V.  Gormley,  517. 

V.  McDonald,  651. 

V.  Mitchell,   325. 

V.  Odell,  793. 

V.  Parker,  752,  754. 

V.  Reed,  854,  855. 

V.  Merrick,   696. 

V.  Weeks,  288. 
Lytle  V.  State,  1119. 


M. 


Maatta  v.  Kippola,  1127. 
Mabary  v.  Dollarhide,  1000. 
Mabry  v.  Harrison,   1130. 
McAlester  v.  Landers,  97,  126. 
McAllister's  Appeal,  1276. 
McAllister  v.  Deoane,  735. 
McAlpine  v.  Burnett,  1290. 
McArthur   v.   Franklin,   467,   1203, 
1241,  1266. 

V.  Scott,  71,  286,  333. 
Macaulay  v.  Dismal  Swamp  Land 
Co.,  427. 

V.  Porter,  1181. 
Macauley  v.  Smith,  1309. 
McBee  v.  Loftis,  746. 
McBreen  v.  McBreen,  496,  497. 


McBride's  Estate,  497. 
McBride  v.  Wilkinson,  637. 
McBrown  v.  Thompson,  .673. 
McBryde  v.  Sayre,  730. 
McCabe  v.  Bellows,  435,  436,  451, 
1242. 

V.  Bruere,  1014. 

V.  Swap,  436,  1249. 
McCall  V.  Chamberlain,  590. 

V.  Mash,  1272. 

V.  Neely,  18. 
McCallum   v.    Germantown  Water 

Co.,  658,  688,  722. 
McCamant  v.  Batsell,  1316. 

V.  Nuckolls,  637. 
McCammant  v.  Roberts,  1230. 
McCampbell  v.  Mason,  292,  320. 
McCandless'  Appeal,  1287. 
McCandlish  v.  Keen,  1289. 
McCann  v.  Atherton,  934. 

v.  Day,  739. 

V.  Randall,  245. 
McCarley  v.  Tippan  County,  921. 
McCartee  v.  Teller,  460-462. 
McCarthy  v.  Nicrosi,  701. 
McCartney  v.  Bostwick,  233. 
McCaslin  v.  State,  1294. 
McCaughrin  v.  Williams,  1185. 
McCauley  v.  Grimes,  423,  424. 

v.  Smith,   1170. 
McCaw  V.  Galbraith,  212. 
McChesney  v.  Davis,  761. 

V.  Wainwright,  882. 
McClain  v.   McClain,  235. 
McClanahan  v.  Porter,  476,  480. 
McClane  v.  White,  1179,  1180. 
McClary  v.  Bixby,  511,  1128. 
McCleary  v.  Ellis,  1137. 
Macleay,  In  re,  1137. 
McClellan  v.  Coffin,  1237. 

V.  Kellogg,  1008. 

V.  McClellan,  224,  225. 
McClelland  v.  Miller,  819. 
McClintic  v.  Wise,  1294. 
McClintock  v.  Cowen,  633. 

V.  Rogers,  889. 
McClowny  v.  Croghan,  98. 
McClung    V.    Missouri    Trust    Co., 
1237. 

v.  Ross,   389,   390. 

V.  Steen,  868. 
McClure's  Appeal,  257. 
McClure  v.  Fairfield,  446. 

V.  Harris,  1289. 

V.  Herring,  938. 

V.  McClure,  968. 


TABLE    OF   CASES. 


1405 


[references  are  to  pages.] 


McClure  v.  Melendy,  73. 

V.  Roman.  1187. 
McClurg  V.  Phillips,  1284. 

V.  Price,  789. 
McConnel  v.  Smith,  51. 
McConnell  v.  Beattie,  1294, 

V.  Brillhart,  919. 

V.  Downs,  911. 

V.  Kibbe,  554,  691. 
McCord  V.  High,  730. 

V.  Oakland    Quicksilver    Min. 
Co.,  562,  580,  581. 
McCorkle  v.  Herrman,  1303. 
McCormick  v.  Connell,  175. 

V.  Horan,  659,  661,  663. 

V.  Joseph,   1087. 

V.  Knox,  1205,   1206. 

V.  McNeel,  510. 

V.  Taylor,  477. 

V.  Wilcox,  1130. 
McCormick  Harvesting  Mach.  Co. 

V.  Gates,  73,  1140. 
McCorry  v.  King,  73. 
McCoy  V.  Danley,  660. 

V.  Morrow,  1321. 

V.  Rhodes,  1313. 
McCrea  v.  Marsh,  679,  680,  682. 

V.  Purmort,  877,  878. 
McCreary  v.  Bomberger,  628. 
McCreery  v.  Clafflin,  804. 

V.  Somerville,  1159. 
Maccubbin  v.  Cromwell,  224,  436. 
McCue  V.  Bellingham   Bay  Water 
Co.,  736. 

V.  Smith,  1175. 
McCulloch  V.  Eudaly,  1093. 

V.  Valentine,  497. 
McCullough  V.  Irvine,  565,  567. 

V,  Staver,  220. 

V.  Wall,  1038. 
McCullum  V.  McKenzie,  964. 
McCumber  v.  Oilman,  1206,  1207. 
McCurdy  v.  Canning,  381,  383. 

V.  Neall,  969,  970. 
McCusker  v.  McEvey,  1080. 
McCutchen  v.  Miller,  1100. 
McCutcheon  v.   Crenshaw,   535. 
McDaniel  v.  Anderson,  930. 

V.  Crosby,  952. 

V.  Cummings,  663. 

V.  Grace,  489. 

V.  Johns,  321. 

V.  McDaniel,  476. 

v.  Mace,  1126. 
McDaniels  v.  Calvin,  1186,  1187. 
McDearmid  v.  Foster,  1322. 


McDermott  v.  Burke,  1204. 

V.  French,  380. 

V.  Kernan,   1134. 
McDevitt  V.  Frantz,  231. 

V.  Lambert,  148. 

V.  People's    Natural    Gas    Co., 
810,   813. 
McDonald  v.  Black,  1208.  1209. 

V.  Crandall,  505,  1122. 

V.  Elyton  Land  Co.,  1289. 

v.  Hamblen,  633. 

v.  McDonald,  1188. 

V.  O'Hara,  259. 
Macdonough  v.  Starbird,  578. 
McDougal  V.   Musgrave,   322. 

V.  Sanders,  773. 
McDowell  V.  Little,  452. 

V.  Milroy,  914. 
McDuffee  v.  Sinnott,  998. 
McElroy  v.  Hiner,  1112. 

V.  McElroy,  47. 

V.  Morley,  164,  183. 
McElwain,  Ex  parte,  449. 
McElwaine,  In  re,  945. 
McEntire  v.  Brown,  1002. 
McFadden  v.  Allen,  544. 

V.  Worthington,  1097. 
McFadin   v.   Rippey,   127. 
McFait's  Appeal,  1280. 
McFarland  v.  Chase,  141. 

v.  Febiger,  451,  452. 

V.  Stone,  1004. 

V.  Williams,  774. 
McGarrahan  v.  New  Idria  Min.  Co., 

842,  843. 
McGary  v.  Hastings,  910,  911. 
McGavock  v.  Deery,  882. 
McGee  v.  Allison,  930. 

V.  Walker,  525. 
McGehee  v.  McGehee,  476. 
McGenness  v.  Adriatic  Mills,  658. 
McGeorge   v.    Hoffman,    722,    1024, 

1029. 
McGettigan  v.  Potts,  671. 
McGinity  v.  McGinity,  230. 
McGinnis'   Appeal,    1250. 
McGinnis  v.  Fernandes,  525. 

V.  Porter,    1010. 
McGlynn  v.  Moore,  175. 
McGonigal  v.  Plummer,  1292. 
McGonigle  v.  Atchison,  517. 
McGovern  v.  Knox,  231,  232. 
McGowan  v.  Baldwin,  511. 

v.  McGowan,  229. 
McGowen  v.  Myers,  905. 
McGrath  v.  Boston,  89. 


1406 


TABLE  OF  CASES. 


[refekences  aee  to  pages.] 


McGrath  v.  Wallace,  1000. 
McGraw's     Estate,     In     re,     1157, 

1158. 
McGready  v.  McGready,  1185. 
McGreevy  v.  McGrath,  340. 
McGregor  v.  Brown,  560. 

V.  Comstock,  1159. 
McGrew  v.  Harmon,  909,  910, 
McGuffey  v.  Finley,  1263. 
McGuire  v.  Barker,  1081. 

V.  Grant,   671. 

V.  St.  Patrick's  Cathedral,  699. 

V.  Van  Pelt,  1269,  1270. 

V.  Wilkinson,  1309. 
McGurren  v.  Garrity,  1316. 
Machen  v.  Hooper,  572. 
Machir  v.  Funk,  631. 
Mclllunny  v.  McIUunny,  57,  62. 
McHwrath  v.  Hollander,  1098. 
Mclnerney  v.  Peck,  862. 
Mclntier  v.  Shaw,  1241. 
Mclntire  v.  Barnes,  1298. 

V.  Paisted,  1210. 
Mcintosh  V.  Rankin,  660. 
Mclntyre  v.  Costello,  422. 

V.  Sanford,   1318. 
Mack  V.  Heiss,  509. 

V.  Patchin,  96,  98. 
Mackason's  Appeal,  1141. 
McKay  v.  Carrington,  264. 
Mackay  v.  Douglas,  1111. 

V.  Easton,   919. 
Macke  v.  Byrd,  1133. 
McKeage  v.  Hanover  Fire  Ins.  Co., 

538. 
McKee  v.  Angelrodt,  1197. 

V.  Barley,  394,  395. 

V.  Jones,   493. 

V.  Wilcox,  1127. 

V.  Haseltine,  1304. 
McKeen  v.  Hazeltine,  1304. 
McKeesport  v.  Fidler,  1321. 
McKerthan  v.  Walker,  1309. 
McKellar  v.  McKellar,  1160. 
McKelway  v.  Seymour,  173. 
McKenna  v.  Kirkwood,  1240. 
McKenzie  v.  Cheetham,  102. 

V.  Elliott,    1023,    1025,    1027. 

V.  Sumner,  205. 
Mackenzie  v.  Childers,  766,  767. 
McKeon  v.  See,  652. 

V.  Whitney,  799. 
McKey  v.  Hyde  Park,  973. 
Mackey  v.  Brownfield,  1184. 

V.  Harmon,  914. 

V.  Proctor,  494. 


McKildor  v.  Darracott,  178,  179. 
Mackin  v.  Haven,  758. 
McKinney  v.  Miller,  1263. 

V.  Settles,  870. 
Mackintosh,  In  re,  60. 

V.  Trotter,  552. 
McKircher  v.  Hawley,  1205. 
McKissick  v.  Pickle,  173,  183. 
Macknet  v.  Macknet,  457. 
Mackreth  v.  Simmons,  1287,  1292. 
McKune  v.  Montgomery,  123. 
McLane  v.  Bovee,  844. 

V.  Johnson,  1112. 

V.  Paschal,   1274. 
McLaren  v.  Anderson,  1130. 
McLaughlin  v.  Cecconi,  1032. 

V.  Cosgrove,  1191. 

V.  Ihmsen,    1077. 

V.  Long,  576. 

V.  Nash,  546. 

V.  Randall,  921,  922. 

V.  Shepherd,  1089,  1316. 
McLean's  Appeal,  1229. 
McLean  v.  Swanton,  1159. 

V.  Upchurch,  1318. 
McLeery  v.  McLeery,  439,  440,  443. 
McLeod  V.  Dial,  501,  565. 

V.  Tarrant.  871,  872. 
McLeran  v.  Benton,  141. 
McLoughlin  v.  Craig,  790. 
McMahan  v.  Kimball,  448. 
McMahill  v.  McMahill,  509. 
McMahon  v.  Bowe,  1120. 

V.  Gray,  470,  471,  484. 

V.  Russell,  446.  451,  1169, 

V.  Williams,  763,  764,  769. 
McManus  v.  Carmichael,  594, 

V.  Cooke,  682. 
McMasters  v.  Negley,  492. 

V.  Wilhelm,  1231. 
McMath  V.  Levy,  549. 
McMechan  v.  Griffing,  1090. 
McMillan  v.  Cheeney,  1146. 

v.  Cox,  618. 

V.  Cronin,  725. 

V.  Deering,  629. 

V.  Fish,  46,  879. 

V.  Richards,   1169,   1194,   1262. 

V.  Robbins,  573. 

V.  Solomon,  136. 

V.  Williams,  1128. 
McMorris  v.  Webb,  1148,  1149. 
McMullin  V.  Wooley,  905. 
McMurphy  v.  Minot,  780,  782,  1197. 
McMurray  v.  McMurray,  1150. 

V.  Shuck,  1122. 


TABLE  OF  CASES. 


1407 


[kekkhences  aue  to  paces.] 


McMurtry  v.  Brown,  919. 
McNabb  v.  Pond,  698. 
McNair  v.  Craig,  248. 

V.  Picotte,  1235. 
McNee  v.  Watertown,  975. 
McNeel  v.  Auldridge,  1179. 
McNeeley  v.  McNeeley,  290. 
McNeely  v.  Langan,  1001. 
McNeil  V.  Ames,  110. 

V.  Kendall,  115. 
McNeill  V.  McNeill,  614. 
McNutt  V.  McComb,  332. 
Macomb  v.  Prentis,  1260. 
McPhee  v.  O'Rourke,  1124. 
McPherson  v.  Acker,  707,  709. 

V.  Hayward,  1172. 

V.  McPherson,  124,  393. 

V.  Reese,  923. 

V.  Rollins,  1091. 

V.  Snowden,  61. 

V.  Walters,  1047. 
McQuade  v.  Rosecrans,  1191,  1192. 
McQuaid  v.  Portland  &  V.  Ry.  Co., 

813,  814. 
McQueen  v.  Farquhar,  619. 
McQuesney  v.  Heister,  793. 
McQuesten  v.  Morgan,  175. 
McQuie  V.  Peay,  1284. 
McRae  v.  Stillwell,  530. 
McRea  v.  Central  Nat.  Bank,  537, 

539,  541,  547. 
McRose  V.  Bottyer,  819. 
McSorley  v.  Larissa,  1207. 
Mactier  v.  Osborn,  187,  188. 
McTigue  V.  McTigue,  493. 
Macumber  v.  Bradley,  280. 
McVay  v.  McVay,  224. 
McVey  v.  Durkin,  1032. 
McWilliams  v.  Bones,  1129. 

V.  Nisby,  1136. 
Madden  v.  Barnes,  1287,  1291. 
Maddox  v.  Goddard,  883. 

V.  Maddox,  170. 
Madera    Irrigation    Dist.,    In    re, 

717. 
Madigan  v.  McCarthy,  545. 
Madison  v.  Larmon,  284,  292,  345, 

353. 
Maeder  v.  Carondolet,  96. 
Magee  v.  Mellon,  466. 

V.  Young,  467. 
Magennis  v.  MacCullogh,  853. 
Maggort  V.  Hansberger,  573. 
Magill  V.  Hinsdale,  938,  1205. 
Magruder  v.  Peter,  1287. 


Mahan  v.  Brown,  651. 
Maher  v.  Lanfrom,  1221. 
Mahoney  v.  Bostwick,  1180,  1244. 

V.  Middleton,  1096. 
Mahoning  County   v.   Young,   162- 

164,  167,  168,  980. 
Maine  v.  Cuniston,  751,  759. 
Major  V.  Herndon,  222. 
Majors  v.  Rice,  586. 
Makepeace  v.  Bancroft,  888. 

V.  Fletcher,  62. 

V.  Worden,  809. 
Malarin  v.  United  States,  880. 
Malarkey  v.  O'Leary,  1239. 
Malin  v.  Coult,  434. 
Malloney  v.  Horan,  453. 
Mallory  v.  Hitchcock,  1251. 

V.  La     Crosse     Abattoir     Co., 
1298. 

V.  Mallory,  277. 

V.  Russell,  442. 
Malone  v.  McLaurin,  494. 

V.  Roy,  1207. 
Maloney  v.  Hefer,  1125. 
Malott  V.  Price,  679. 
Manchester  v.  Hough,  1144. 

V.  Massachusetts,  591,  601,  602, 
825. 
Manchester  &  K.  R.  Co.  v.  Keene, 

1072. 
Mandel  v.  McClave,  447,  450,  467. 
Mander  v.  Falcke,  963. 
Manderson  v.  Lukens,  326. 
Mandeville's  Case,  58. 
Mandeville  v.  Solomon,  399,  401. 
Mandlebaum    v.    McDonnell,    606, 

613,   616,   1136,   1137. 
Mangels    v.    Donan    Brewing    Co., 

1264. 
Mangold  v.  Barlow,  1083. 
Mankato  v.  Willard,  972. 
Manlove  v.  Bale,  1197. 
Manly  v.  Pettee,  1313. 

V.  Slason,  1290,  1291. 
Mann  v.  Carrington,  1133. 

V.  Edson,  422,  432. 

V.  Jackson,   171. 

V.  Mann.  509. 
Mannerback's  Estate,  312. 
Manners  v.  Johnson,  765. 
Manning's  Case,  339. 
Manning  v.  Burges,  1166. 

V.  Frazier,  517,  520. 

V.  Johnson,  1151. 

V.  Laboree,  435. 

V.  Wasdale,  741. 


1408 


TABLE  OF  CASES. 


[kefeeences  ake  to  pages.] 


Mansfield  v.  Gregory,  1305. 
Manson  v.  Duncanson,  644. 

V.  Phoenix  Ins.  Co.,  1210. 
Mansur  v.  Blake,  1024. 

V.  State,  974. 
Mantle  v.  Wollington,  402. 
Mantz  V.  Buchanan,  447. 
Manwaring    v.    Jenison,    537,    539, 

545,  1171. 
Maples  V.  Milton,  526,  1211. 
Marburg  v.   Cole,   379,   381,  382. 
Marbury  v.  Thornton,  916. 
March,  In  re,  380. 
Marchbanks  v.  Banks,  1094,  1095, 
Marines  v.  Goblet,  1045. 
Marix  v.  Stevens,  91. 
Marker  v.  Marker,  570. 
Markham  v.  Merrett,  442,  449. 
Markillie  v.  Ragland,  49. 
Markland  v.  Crump,  917. 
Markoe  v.  Andras,  1292,  1293. 

V.  Wakeman,  394,  395,  403. 
Marks  v.  Marks,  173. 

V.  Sewall,  395. 

V.  Tarver,  625. 

V.  Tichenor,   265. 
Marlborough  v.  Godolphin,  613. 
Marlow  v.  Barlew,  384. 
Marmon  v.  Harwood,  1111. 
Marquette,  H.  &  O.  R.  Co.  v.  Har- 
low, 799. 
Marr  v.  Hobson,  882. 
Marsellis  v.  Thalheimer,  293. 
Marsh  v.  Austin,  1316. 

V.  Brace,  108,  796. 

V.  Butterworth,  127. 

V.  Fairbury,  976. 

V.  Lazenby,  1122,  1123. 

V.  Lee,  1243. 

V.  Love,  631. 

V.  McNider,  598. 

V.  Trullinged,    659. 

V.  Turner,  1287. 
Marshall  v.  Bachelder,  542. 

V.  Christmas,  1287,  1291,  1292. 

V.  Crehore,  407. 

V.  Ferguson,  531. 

V.  Fisk,  859. 

V.  Green,  531. 

V.  John   Grosee   Clothing  Co., 
856. 

V.  McPherson,  478. 

V.  Moseley,  783. 

V.  Palmer,  402. 

V.  Rash,  1138. 

V.  Roberts,  1091. 

V.  Shrewsbury,  1283. 


Marshall  v.  Welwood,  650,  666. 
Marston  v.  Hobbs,  900,  912, 

V.  Marston,  169,  1277. 

V.  Roe,  964. 

V.  Stickney,  883. 
Martin  v.  Alter,  1275. 

V.  Baker,  916. 

V.  Ballow,  166. 

V.  Bliss,  730. 

V.  Bowker,  1255. 

V.  Drinan,  750,  751. 

V.  Friedley,  1242. 

V.  Hughes,  1126. 

V.  Jackson,  1009,  1012,  1090. 

V.  Jett,  665. 

V.  Kelly,  1249. 

V.  McCord,  250. 

V.  Martin,   111,   112,   466,   481, 
751,  783. 

V.  Nixon,  1312. 

V.  Ratcliff,  1240. 

V.  Rector,  1008. 

V.  Remington,  416. 

V.  Roe,  552. 

V.  Searcy,  790. 

V.  Smith,  374,  375,  377,  1289. 

V.  Stoddard,  1255. 

V.  Waddell,  591,  601,  602,  839. 
Martindale  v.  Alexander,  397. 
Martling  v.  Martling,  313,  315. 
Martyn  v.  Knollys,  580. 
Marvin  v.  Brewster  Iron  Min.  Co., 
517,  672,  741. 

v.  Smith,  449,  466. 

v.  Titsworth,  1274. 
Maryland  Coal  Co.  v.  Cumberland 

&  P.  R.  Co.,  757. 
Mason'  v.  Ammon,  60. 

V.  Columbia  Finance  &  Trust 
Co.,  1126. 

V.  Cooksey,  910. 

V.  Deese,  497. 

V.  Hill,  656,  662,  674. 

V.  Hoyle,  657. 

V.  Luce,  1276. 

V.  Mason,  467,  468. 

V.  Mullahy,  1090. 

V.  Shrewsbury  &  H.  Ry.   Co., 
688. 

V.  Smith,  119. 

V.  Trustees  of  M.  E.  Church, 
253. 

V.  Wheeler,  630. 

V.  Wierengo,  152. 
Massachusetts   Hospital   Life   Ins. 

Co.  V.  Wilson,  1215. 
Massey's  Appeal,  956. 


TABLE  OF  CASES. 


1409 


[keferences  are  to  pages.] 


Massey  v.  Huntington,  246. 

V.  Modawell,  257. 

V.  Westcott,  1313. 
Massie  v.  Watts,  221. 
Massingill  v.  Downs,  1305. 
Massot  V.  Moses,  520,  745. 
Master  v.  Hansard,  766. 
Masterson  v.  Pullen,  265,  266. 
Mastin  v.  Barnard,  625. 
Masury  v.  Southworth,  118. 
Mather  v.  Chapman,  593. 

V.  Corliss,  935. 
Mathews  v.  Mathews,  485. 
Mathewson's  Case,  881. 
Mathewson  v.  Fitch,  1119. 
Mathis  V.  Hammond,  340. 

V.  Jones,   58y. 
Matlack  v.  Shaffer,  879. 
Matthews  v.  Ferrea,  1005. 

V.  Fidelity  Title  &  Trust  Co., 
1247. 

V.  Goodday,  1283. 

v.  Hevner,  1119. 

V.  Hudson,  52,  559. 

V.  Jones,  1251. 

V.  Lindsay,   1258. 

V.  McDade,  627,  628. 

V.  McPherson,  246. 

V.  Sheehan,  1182. 

V.  Treat,  602,  826. 

V.  Wallwyn,  1230. 
Matthiessen  &  H.  Zinc  Co.  v.  La 

Salle,   194. 
Mattison  v.   Husmuss,  1013. 
Mattocks  V.  Brown,  48. 

V.  Farrington,  1318. 

V.  Stearns,  71,  411,  412,  499. 
Maudlin  v.  Hanscombe,  695. 
Maul  V.  Rider,  400,  1086. 
Maule  V.  Ashmead,  96. 

V.  Weaver,  751. 
Maundrell  v.  Maundrell,  432,  643. 
Maupin    v.    Emmons,    1085,    1088, 

1097. 
Maus  V.  McKelly,  1184,  1186. 
Maxey  v.  Thurman,  888. 
Maxon  v.  Lane,  1048. 
Maxwell  v.  Featherston,  954. 

V.  McAtee,  729. 

V.  Maxwell,    580. 

V.  Moore,  1236,  1238. 

V.  Vaught,  130B. 
Maxwell  Land  Grant  Case,  845. 
May  V.  Hanks,  1047. 

V.  Slade,  401. 

V.  Smith,  703. 

Real  Prop.— 89. 


Mayburry  v.  Brien,  425,  432,  434, 

441. 
Maye  v.  Gappen,  587. 
Mayer  v.  Mutchler,  1298. 

V.  Ramsay,  1045. 

V.  Temple  Beth.  El.,  698,  699. 

V.  Wick,  1260. 
Mayfair  Property  Co.  v.  Johnston, 

691. 
Maygatt  v.  Coe,  752. 
Mayham  v.  Combs,  1084,  1314. 
Mayhew  v.  Hardesty,  119,  1197. 
Mayho  v.  Buckhurst,  118. 
Maynard  v.  Hill,  464. 

V.  Hunt,  1237. 

V.  Maynard,  930,  931. 

V.  Moore,  751. 

V.  Vinton,  950,  952. 
Mayo  V.  Cartwright,  1046. 
Mayor   of   What   v.    Thomas,    781, 

787. 
Mayor,  etc.,  of  Thetford  v.  Tyler, 

154. 
Maypole  v.  Forsyth,  727. 
Maysville  v.  Boom,  11. 
Maywood  v.  Logan,  99,  100. 
Maywood   Co.   v.   Village   of  May- 
wood,  718. 
Meacham  v.  Bunting,  464,  497,  498,. 
1009. 

V.  Meacham,  403. 

V.  Steele,  247.  248,  1242. 
Mead  v.  Anderson,  714. 

V.  Ballard,   165. 
Meador  v.  Meador,  1130,  1285. 
Meagher  v.  Hayes,  544. 
Meakings  v.  Cromwell,  623. 
Meazels  v.  Martin,  919. 
Mebane  v.  Mebane,  1138. 

V.  Patrick,  1023. 
Mecklem  v.  Blake,  916. 
Mecum  v.  Peoria  &  O.  R.  Co.,  94. 
Medelet  v.  Wales,  791. 
Medford  v.  Frazier,  393. 
Medinah    Temple    Co.    v.    Currey, 

178. 
Medlenka  v.  Downing,  1125. 
Medley  v.  Medley.  340,  342. 
Meech  v.  Meech,  510. 
Meehan  v.   Forrester,   1180. 
Meek  v.  Devenish,  259. 

V.  Perry,   953. 

V.  Skeen,  1097. 
Meeker  v.  Breintnall,  630. 

V.  Meeker,    877. 
Meeks  v.  Olpherts,  220. 


1410 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Meeks  v.  Willard,  889. 
Meier  v.  Lee,  1159. 

V.  Portland  Cable  Ry.  Co.,  975, 
977. 
Meigs  V.  Dexter,  936. 

V.  Lister,  653. 
Meikel  v.  Borders,  1092. 
Melick  V.  Pidcock,  48. 
Melizet's  Appeal,  467. 
Mellen  v.  Mellen,  259. 

V.  Moline       Malleable       Iron 
Works,  1099. 
Mellichamp  v.  Mellicbamp,  59. 
Mellick  V.  Mellick,  1115,  1116. 
Melius  V.  Snowman,  412,  497. 
Melms  V.  Pabst  Brewing  Co.,  560, 

568. 
Melross  v.  Scott,  1290. 
Melsheimer  v.  Gross,  59. 
Melvin  v.  Proprietors  of  Locks,  411, 
497,   499,   500,   1013,   1145. 

V.  Whiting,  1021,  1023,  1029. 
Memmert  v.  McKeen,  907. 
Memphis  &  C.  R.  Co.  v.  Neighbors, 

160. 
Memphis  &  Little  Rock  R.  Co.  v. 

Commissioners,  11. 
Mendel  v.  Hall,  153. 
Mendenhall  v.  Klinck,  684,  747. 

V.  Mower,  302. 
Mendinhall's  Appeal,  962. 
Meno  V.  Hoeffel,'  155. 
Meramon  v.  Caldwell,  497. 
Mercantile  Bank  v.  Ballard,  288. 
Mercantile    Trust    &    Dep.    Co.    v. 

Brown,  285. 
Mercer  v.  Hopkins,  312. 

V.  Selden,  488,  489. 

V.  Woodgate,  973. 
Mercer  County  v.  Pennsylvania  Ry. 

Co.,  819. 
Merchants'  Bank  v.  Thomson,  447, 

1266. 
Merchants'  Nat.  Bank  of  Crookston 

V.  Stanton,  543,  544. 
Mercier  v.  Chace,  507,  511,  1125. 

V.  Missouri  River,  F.  S.  &  G. 
R.  Co.,  45. 
Meredith  v.  Frank,  712,  714. 

V.  Joans,  204,  214. 
Meriwether  v.  Booker,  412. 
Merriam  v.  Cunningham,  1148. 

V.  Meriden,  680. 

V.  Simonds,  335,  340. 
Merrick  v.  Wallace,  1083. 
Merrifield  v.  Cobleigh,  174. 


Merrifield  v.  Lombard,  658. 

V.  Worcester,  659. 
Merrigan  v.  English,  1298. 
Merrill  v.  Bickford,  1281. 

V.  Bullock,  151. 

v.  Chase,  1235. 

V.  Bearing,  220. 

V.  Hayden,  954. 

V.  Hurley,  1233,  1274. 

V.  Luce,  1232,  1233. 

V.  Nelson,   866. 

V.  Preston,   239. 
Merrills   v.    Swift,    927,    929,    930, 

935,  1176,  1184. 
Merriman  v.  Miles,  1218,  1219. 

V.  Moore,  1218-1220. 
Merritt  v.   Bartholick,   1230,   1262. 

V.  Brinckerhoff,  657. 

v.  Bucknam,  362,  1279,  1280. 

V.  Closson,  97. 

V.  Hill,  588. 

V.  Home,  489. 

V.  Hosmer,  1242. 

V.  Lambert,  1236. 

V.  Parker,   661. 
Merriwether  v.  Larmon,  586. 
Merry  v.  Hallett,  1308. 
Merselis  v.  Van  Riper,  1242. 
Mershon  v.  Williams,  96. 
Merwin  v.  Wheeler,  593. 
Messer  v.  Oestreich,  889. 
Messinger's  Appeal,  688,  1025. 
Messmore  v.  Stephens,  1312. 
Mestaer  v.  Gillespie,  234. 
Metcalf  V.  Hart,  680-682. 

V.  Nelson,  741. 
Metcalfe  v.  Brandon,  935. 

V.  McCutchen,  1014. 

V.  Miller,  406. 

V.  Pulvertoft,  1098. 
Methodist  Epis.   Church  of  Hobo- 
ken   V.   Hoboken,   972,   973,   975, 
979. 
Metropolitan  Ass'n  v.  Petch,  731. 
Metropolitan  Ry.  Co.  v.  Fowler,  7. 
Mettler  v.  Miller,  488,  489,  494,  925, 

1012. 
Metz  V.  State  Bank  of  Brownville, 
1307. 

V.  Todd,  1218. 
Metzger  v.  Schultz,  102. 
Meux  V.  Jacobs,  547,  552. 
Mexia  v.  Oliver,  939. 
Meyer,  In  re,  1118. 

V.  Eisler,  334. 

V.  Gossett,  926. 


TABLE   OF   CASES. 


1411 


[references  are  to  pages.] 


Meyer  v.  Kinzer,  383-385. 

V.  Lincoln,  817. 

V.  Metzler,  515. 
Meyers  v.  Schemp,  545,  546. 
Michael  v.  Foil,   877. 
Micheau  v.  Crawford,  300. 
Michener  v.  Cavender,  926. 
Michigan    Ins.    Co.    of    Detroit   v. 

Brown,  1186. 
Michigan  Mutual  Life  Ins.  Co.  v. 

Cronk,  537,  546. 
Michigan  Trust  Co.  v.  Carlin,  1128. 
Mickle  V.  Douglas,  672,  690. 

V.  Maxfield,  1224. 

V.  Miles,  774,  775. 

V.  York,  760,  761. 
Mickles  v.  Dillaye,  1207. 

V.  Townsend,   1252. 
Micklethwait  v.  Newlay  Bridge  Co., 

595. 
Micou  V.  Ashurst,  1293. 
Middlebrook  v.  Corwin,  556,  557. 
Middlesex  Co.  v.  Lowell,  722. 
Middleton  v.  Dougherty,  73. 

V.  Pritchard,  594,  1038. 

V.  Steward,  496,  497. 
Middletown  v.   Newport   Hospital, 

754,  763. 
Midgett  V.  Brooks,  751. 
Midgleys  v.  Lovelace,  781. 
Midland  Ry.  Co.  v.  Fisher,  751,  756, 

758. 
Miesen  v.  Canfield,  1016. 
Miffln's  Appeal,  647. 
Mildmay's  Case,  66,  347,  431,  496. 
Miles'  Appeal,  959. 
Miles'  Will,  945. 
Miles  V.  Fisher,  45. 

V.  Hall,  508. 

V.  Harford,  360. 

V.  James,  1322. 

V.  Miles,  72,  509. 

V.  Thorne,  1010. 
Milford  V.  Holbrook,  104. 
Milholland  v.  Tiffany,  1248. 
Mill  Dam  Foundry  Co.  v.  Hovey, 

922. 
Mill    River    Woolen    Mfg.    Co.    v. 

Smith,  596,  597. 
Millard  v.  Hathaway,  230. 

V.  McMullin,  389. 

V.  Truax,  1207. 
Milledge  v.  Lamar,  431. 
Miller's  Estate,  329. 
Miller,  In  re,  340. 


Miller  v.  Aldrich,  1208.   * 

V.  Anderson,  1319,  1320. 

v.  Baker,  548. 

V.  Barroll,  1301. 

v.  Binder,  922. 

v.  Bingham,  1009. 

V.  Bradford,  1083. 

v.  Brown,  702,  1129. 

V.  Bryan,  887. 

V.  Bumgardner,  1001,  1004. 

V.  Cheney,  150,  525. 

V.  Chittenden,  323. 

V.  Craig,  878. 

V.  Curry,  1207. 

V.  Davidson,  241. 

V.  Donaldson,  1264. 

v.  Emans,  30?,  342. 

V.  Finegan,  1123. 

V.  Fleming,  271. 

V.  Fletcher,  934. 

v.  Greenwich,  679. 

V.  Hepburn,  1038. 

v.  Laubach,  661,  663-665, 

v.  Levi,  191. 

V.  Lincoln,  1202. 

v.  Marx,  508. 

V.  Meers,  929,  937. 

V.  Meetch,  612. 

V.  Mendenhall,  595. 

V.  Merine,  1081. 

V.  Miller,  267,  953. 

V.  Mills  County,  585. 

V.  Pence,  469,  482. 

V.  Prescott,  120,  161,  178. 

V.  Rogers,   1223. 

V.  Rutland  &  W.  R.  Co.,  1228. 

V.  Shackleford,  153,  155. 

V.  Sherry,   1099. 

V.  Shields,  571. 

V.  Stagner,  113. 

V.  State,  682. 

V.  Stump,  1289. 

V.  Thatcher,  224. 

V.  Thompson,  1220,  1266. 

V.  Tipton,   1171. 

V.  Warmington,  582. 

V.  Washington      Sav.      Bank, 
1229. 

V.  Whelan,  1252. 

V.  Whittier,  1206. 

V.  Williams,  880. 

V.  Wilson,  22o,  433. 

V.  Woodman,  482. 
Millett  V.  Parker,  933. 
Milligan's  Appeal,  1248. 
Milliken    v.    Bailey,   1202. 


1412 


TABLE  OF   CASES. 


[references   ABE   TO   PAGES.] 


Milliken  v.  Welliver,  305,  456. 
Milling  V.   Becker,  855. 
Mills  V.  Auriol,  782,  796. 

V.  Bodley,  1002. 

V.  Catlin,  903. 

V.  Darling,   1189. 

V.  Davison,  162,  163,  251. 

V.  Bvansville  Seminary,  165. 

V.  Hall,  1022. 

V.  Harris,  266. 

V.  Merryman,  779. 

V.  Penny,  1014. 

V.  Shepard,  1196. 

V.  Van   Voorhies.   435,  1241. 
Millspaugh  v.  Mitchell,  1318. 
Milne's  Appeal,  728. 
Milner  v.  Nelson,  926. 

V.  Norris,  1302. 
Milnes  v.  Branch,  752. 
Miltimore  v.  Miltimore,  464. 
Mims  V.  Mims,  1083. 
Miner  v.  Brown,  380. 

V.  Gilmour,  656. 

V.  Paris  Exchange  Bank,  1276. 
Miners'  Sav.  Bank  v.  Sandy,  505. 
Mineral   Springs   Mfg.   Co.   v.   Mc- 
Carthy, 729. 
Mingus  V.  Condit,  1183,  1184. 
Minneapolis    Co-operative    Co.    v. 

Williamson,  129,  790. 
Minneapolis  Mill  Co.  v.  Minneapo- 
lis &  St.   L.  Ry.   Co.,   682. 
Minneapolis  Trust  Co.  v.  Perhulst, 

1211. 
Minneapolis    Western    Ry.    Co.    v. 
Minneapolis    &    St.    L.    Ry.    Co., 
684. 
Minneapolis   &   St.    L.    Ry.    Co.   v. 

Wilson,  1310. 
Minnesota  Co.  v.  St.  Paul  Co.,  540. 
Minnig  v.  Batdorff,  292. 
Minns  v.  Morse,  1310. 
Minor  v.  Hill,  1228. 
Minot  V.  Prescott,  633. 

V.  Tilton,  246. 
Minshull  v.  Oakes,  117,  119. 
Minter  v.  Durham,  400. 
Minto  V.  Delaney,  1035. 
Mirick  v.  Hoppin,  1204. 
Missionary  Soc.  v.  Humphreys,  354. 
Mississippi  Mills  Co.  v.  Smith,  658. 
Mississippi  Valley  &  W.  Ry.  Co.  v. 
United  States  Express  Co.,  1201. 
Missouri  v.  Walker,  614. 
Missouri  Pac.  Ry.  Co.  v.  Moffit,  883, 
Mitchell  v.  Bartlett,  1261. 


Mitchell  V.  Black,  1171. 

v.  Campbell,  998. 

V.  Denson,  620. 

V.  Farrish,   446. 

V.  Franklin,  800. 

V.  Hazen,  395,  912,  914. 

V.  Ladew,  1227.  1228. 

V.  Leavitt,  172. 

V.  Parham,  923. 

V.  Rome,  1026,  1031. 

V.  Ryan,    298,    929,    930,    935, 
936. 

V.  Seipel,  712. 

V.  Spence,  606,  622. 

V.  Stanley,  914. 

V.  Starbuck,  823. 

V.  Warner,  7,  905,  908,  915. 

V.  Winslow,  1173. 
Mitford  V.  Mitford,  412. 
Mittler  v.  Miller,  497. 
Mix  V.  Hotchkiss,  1206. 

v.  Ross,  1321. 
Mixer  v.  Reed,  883. 
Mizzell  v.  McGowan,  665. 
Mobile  V.  Eslava,  845. 
Mobile   &  O.   R.   Co.   v.   Williams, 

589. 
Mobley  v.  Bruner,  402. 
Modlin  V.  Kennedy,  565. 
Moelle  V.  Sherwood,  1092. 
Moffatt  V.  Hardin,  1230. 

V.  Smith,   113,   780. 
Moffett  V.  Parker,  1230,  1231. 
Moffitt  V.  Lytle,  728. 
Molineaux  v.  Raynolds,  956. 
Mollan  V.  Griffith,  1246. 
Molton  V.  Camroux,  1155. 
Monoghan  v.  Memphis  Fair  &  Ex- 
position Co.,  735,  736. 
Monday  v.  Vance,  246. 
Mondorf  s  Will,  In  re,  952. 
Mondschein  v.  State,  533. 
Monell  v.  Monell,  241. 
Money  v.  Dorsey,  1310. 
Monk  V.  Capen,  507. 
Monongahela  Bridge  Co   v.  Kirk, 

594. 
Monroe  v.  Smith,  1111,  1112. 

V.  Van  Meter,  497. 

V.  West,  1301. 
Montague  v.  Allan,  953. 

V.  Dawes,  1272. 
Montandon  v.  Deas,  1304. 
Montefiore  v.  Browne,  625. 
Montgomery  v.  Agricultural  Bank, 
626. 


TABLE   OF   CASES. 


1413 


[references  are  to  pages.] 


Montgomery  v.  Chadwick,  1203. 

V.  Dorion,  937,  1158,  1159. 

V.  Gunther,  1018. 

V.  Santa  Ana  Westminster  Ry. 
Co.,  810,  812,  815. 

V.  Spect,  1182. 

V.  Sturdevant,   871. 

V.  Trustees  of  Masonic  Hall, 
691. 

V.  Willis,  153. 
Monti  V.  Barnes,  539. 
Monticello  Hydraulic  Co.  v.  Lough- 

ry,  1312. 
Montooth  V.  Gamble,  520. 
Monypenny  v.  Bering,  359. 
Moodie  v.  Garnance,  785. 

V.  Reid,  947. 
Moody  V.  King,  431. 

V.  McClelland,  668,  670,  671. 

V.  Matthews,  412. 

V.  Palmer,  894. 

V.  Tedder,  628. 

V.  Walker,  302. 

V.  Wright,  1173. 
Mooers  v.  Wait,  564,  578. 
Moon  V.  Jennings,  399. 

V.  Stone,  60. 
Mooney  v.  Cooledge,  873. 
Moor  V.  Parker,  311. 

V.  Thomas,  1284. 
Moore's  Appeal,  1217,  1218. 
Moore  v.  Alden,  459. 

V.  Anders,  1194,  1294, 

V.  Bedford,  606. 

V.  Boyd,  142,  143. 

V.  Brooks,  314. 

V.  Byrum,   1174. 

V.  Cable,  1203,  1206,  1207. 

V.  Collins,   929. 

V.  Cornell,  417. 

V.  Crawford,  234. 

V.  Crose,  685,  686. 

V.  Darby,  502. 

V.  Dean,  7. 

V.  Dimond,  292,  626,  636. 

V.  Dunning,  1124. 

V.  Ellsworth,  575. 

V.  Estey,  424,  438,  443. 

V.  Fletcher,  718. 

V.  Flynn,  936. 

V.  Frankenfield,  97. 

V.  Frost,  469. 

V.  Fuller,  927. 

V.  Gary,  61,  329. 

V.  Giles,  935. 

V.  Greene,  1000. 


Moore  v.  Hazleton.  929,  931,  935. 

V.  Hopkins,  926. 

V.  Horsley,  228. 

V.  Jackson,  1301. 

V.  Johnston,  903. 

V.  Jordan.  228,  1311. 

V.  Kime,  1235. 

V.  Lackey,    1293. 

V.  Lee,  59. 

V.  Levert,  694. 

V.  Littel,  283. 

V.  Lord,  872. 

V.  Lyons,  337. 

V.  McCown,  1007. 

V.  Merrill,  916. 

V.  Moore,  252,  967,  1139. 

V.  Morrow,  155. 

V.  Murphy,  769. 

V.  New  York,  448,  467,  468. 

V.  Norman,  1238. 

V.  Page,  1146. 

V.  Perry,  159. 

V.  Pitts,   186. 

V.  Rake,  1044. 

V.  Rawson,  735-737. 

V.  Rayner,  727. 

V.  Robbins,  262. 

V.  Rohrer,  877. 

V.  Rollins,  426,  562,  563. 

V.  Shoemaker,  733. 

V.  Shultz,  205. 

V.  Shurtleff.  1224. 

V.  SmaW,  518. 

V.  Smith,  545. 

V.  Spellman,  219. 

V.  Stinson,  213,  248. 

V.  Thomas,  452. 

V.  Tisdale,  449. 

V.  Titman,  1198. 

V.  Townshend,     101,     570-572, 
574.  575. 

V.  Vail,  911. 

V.  Waco,  872. 

V.  Weaver.  289. 

v.. Webber,  97,  102. 

V.  Weber.  99. 

V.  Wilkinson.  844. 

V.  Wingate,  181. 
Moores  v.  Moores,  613,  633. 

V.  Wills,  1177. 
Moorman  v.  Gibbs,  1313. 
Moran  v.  Clark,  1132. 
Mordecai  v.  Parker,  220. 

V.  Schirnier,   641. 
More  V.  Calkins,  1270,  1274. 
Moorehead  v.  Watkyns,  148. 


1414 


TABLE  OF  CASES. 


[references   ABE  TO   PAGES.] 


Morehouse  v.  Cotheal,  63,  64,  278, 

565. 
Morelle  v.  Sherwood,  880. 
Morey  v.  Fitzgerald,  816. 

V.  Lohier,  961. 
Jlorgan  v.  Boyes,  730. 
V.  Davis,  1236. 
V.  Henderson,  910. 
V.  Ireland,  962. 
V.  King,  827. 
V.  Kline,  1229. 
V.  McCollister,  857. 
V.  Menth,  707,  734. 
V.  Moore,  247. 
V.  Morgan,    64,    205,    265,    364, 

490,  492,  497,  1240. 
V,  Rogers,  205. 
V.  Sherwood,  1277. 
V.  Smith,  434,  905,  914. 
V.  Walbridge,  1207. 
Moriarty  v.  Ashworth,  1211. 
Morice  v.  Bishop  of  Durham,  1139. 
Moritz  V.  Hoffman,  1111,  1112. 
Morley  v.  Pragnell,  652,  653. 
Mornington  v.  Keane,  1284. 
Morrice's  Case,  404. 
Morrill  v.  Hopkins,  511. 
V.  Mackman,  87. 
V.  Skinner,  1175. 
V.  Wabash,  St.  L.  &  P.  Ry.  Co., 
165,  173. 
Morris  v.  Bacon,  1227. 
V.  Budlong,  1203. 
V.  French,  543. 
V.  Graham,  602. 
V.  Harris,  405. 
V.  Hastings,  385. 
V.  Hogle,  1091. 
V.  Hoyt,  265. 
V.  Jansen,  1044. 
V.  McCarty,  379. 
V.  McClary,  1018. 
V.  Potter,  990. 
V.  Sargent,  926. 
V.  Sickly,  1282. 
V.  Stephens,  867. 
V.  Ward,  1266. 
V.  Way,  1191. 
Morris    Canal   &   Banking   Co.    v, 

Brown,  193,  194. 
Morrison  v.  Bowman,  938. 
V.  Brown,  1292. 
V.  Chadwick,  130. 
V.  Clark,   393. 
V.  King,  713. 
V.  Marquardt,  706. 


Morrison  v.  Morrison,  580,  1189. 

V.  Semple,  49. 

V.  Smith,  178. 

V.  Wilson,  862. 
Morrow  v.  Breniger,  255,  259. 

V.  Dows,  1319,  1320. 

V.  Jones,  1179. 

V.  Whitney,  843. 
Morse  v.  Aldrich,  753,  754,  756. 

V.  Copeland,  680,  700,  738,  739. 

V.  Curtis,  1096. 

V.  Garner,  757. 

V.  Goddard,  125,  126,  793. 

V.  Godfrey,  1183,  1184. 

V.  Hayden,  167. 

V.  Martin,  635. 

V.  Merritt,  1259. 

V.  Proper,  288,  306,  307. 

V.  Rood,  1137. 

V.  Shattuck,   228. 

V.  Stocker,  978. 

V.  Williams,  1026. 

V.  Zeize,  975.  " 

Morsell  v.  First  Nat.  Bank,  1305, 

1309. 
Mortland  v.  Mortland,  879. 
Morton  v.  Barrett,  211. 

V.  Funk,  323. 

V.  Noble,  450. 

V.  Onion,  963. 
Morville  v.  Fowle,  624. 
Mory  V.  Michael,  630. 
Mosby  V.  Mosby,  622. 

V.  Paul,  60. 
Moseley's  Trusts,  In  re,  348,  361. 
Moseley  v.  Hankinson,  1012. 
Moses  V.  Hatfield,  1184. 

V.  Johnson,  1294. 

V.  Loomis,  176,  178. 

V.  Pittsburgh,  Ft.  W.  &  C.  R. 
Co.,  812,  814. 

V.  Southern  Pacific  R.  Co.,  590. 
Mosher  v.  Berry,  888. 

V.  Mosher,  427,  441. 

V.  Vehne,  1213. 
Moshier  v.  Norton,  1202,  1203. 

V.  Reding,  153. 
Mosier's  Appeal,  1247. 
Moss  V.  Gallimore,  1204. 

V.  Green,  1181. 

V.  Rose,  398. 
Mosseller  v.  Deaver,  156. 
Mostyn    v.    West   Mostyn    Coal   & 

Iron  Co.,  97. 
Motley  V.  Jones,  1097. 

V.  Sawyer,  469. 


TABLE  OF  CASES. 


1415 


[KEFERENCES   ABE   TO   PAGES.] 


Mott  V.  Ackerman,  622,  631. 

V.  Clark,   1230-1232. 

V.  Danville  Seminary,  273. 

V.  Mott,    897. 

V.  Oppenheimer,  759,  761. 

V.  Palmer,   542,   543,   546,   554, 
903. 

V.  Smith,  1145. 

V.  Underwood,  581. 
Moule  V.  Garrett,  121. 
Moulton  V.  Cornish,  1257. 

V.  Libbey,  602,  826. 

V.  Robinson,  533,  534,  773. 
Mount  Moriah  Cemetery  Ass'n  v. 

Com.,   699. 
Mountague   v.    Jeoffereys,    966. 
Mountjoy's  Case,  745,  747. 
Mowlem,  In  re,  324. 
Mowry  v.  Bradley,  442. 

V.  Providence,  972. 

V.  Sanborn,  1272. 
Moyer  v.  Drummond,  1122. 

V.  Hinman,  1097,  1122,  1310. 
Mudge  V.  Hammill,  306,  312. 
Mueller  v.  Fruen,  1021,  1029. 
Muir  V.  Berkshire,  1247. 
Muldrow  V.  Fox,  624,  626. 
Mullaney  v.  Duffy,  585,  587. 
Mullany  v.  Mullany,  239,  491,  496. 
Mullen,  In  re,  1117. 
Mullen  V.   Strickler,  706,   1031. 
Muller  V.  Brujek,  879. 

V.  Landa,   595,  891. 
Mullholland's  Estate,  426. 
Mulloyr  v.  Ingalls,  923. 
Mullreed  v.  Clark,  329. 
Mulry  V.  Norton,  1034,  1037,  1038. 
Mulvane  v.  Rude,  332. 
Mulvey  v.  Gibbons,  1273. 
Mumford  v.   Brown,   396,   397. 
Mundy  v.  Monroe,  1273. 

V.  Mundy,  957. 
Munger  v.  Baldridge,  1145. 

V.  Perkins,  481. 

V.  Tonawanda  R.  Co.,  589. 
Munigle  v.  Boston,  191. 
Munn  V.  Burgess,  1272. 
Munro  v.  Jeter,  511. 
Munroe  v.  Hall,  170. 
Munshower  v.  Patton,  1005. 
Murchie  v.  Black,  691. 

V.  Gates,    690. 
Murchison  v.  Plyler,  1127. 
Murdock  v.  Chapman,  888. 

V.  Clarke,  1202. 

V.  Gifford,  547. 
Murfield's  Will,  In  re,  970. 


Murly  V.  McDermott,  691. 
Murphy's  Estate,  In  re,  625. 
Murphy  v.  Bolger,  515. 

V.  Copeland,  892. 

v.  Doyle,   1018. 

V.  Lee,  874. 

V.  Price,  911. 

V.  Ryan,  594. 

V.  Welch,  1024. 
Murray  Canal.  In  re,  487. 
Murray  v.  Albertson,  99,  791. 

V.  Cherrington,  92. 

V.  Green,  1136. 

V.  Harway,  177. 

V.  Haverty,  580. 

V.  Stair,  928. 
Murrell  v.  Mandelbaum,  387,  388. 

V.  Roberts,  111. 
Murry  v.  Hennessey,  945. 
Musch  V.  Burkhart,  532. 
Muse  V.  Friedenwald,  491. 
Musgrave  v.  Bonser,  1085. 
Muskett  V.  Hill,  745. 
Muskingum    Bank    v.    Carpenter. 

1284. 
Mussell  V.  Morgan,  327. 
Musser  v.  Hershey,  598. 
Musser-Sauntry   Land,   Logging  & 

Mfg.  Co.  V.  Tozer,  1000. 
Mussey  v.  Holt,  135. 
Mustard  v.  Wohlford,  1148,  1149. 
Mutual    Benefit    Life    Ins.    Co.    v. 
Brown,  919. 

V.  Grace  Church,  1136. 
Mutual  Building  &  Loan  Ass'n  v. 

Wyeth,  1239. 
Mutual  Fire  Ins.  Co.  v,  Deale,  232. 
Mutual  Life  Ins.  Co.  v.  Corey,  926. 

V.  Dake,  1082,  1083. 

V.  Everett,  635. 

V.  Shipman,  470.  629,  1171. 

V.  Sturges,  1264. 
Mutual    Loan    &    Banking    Co.    v. 

Haas,  1270,  1272. 
Myar  v.  Snow,  329. 
Myer  v.  Beal,  1256. 
Myers  v.  Brodbeck,  914. 

V.  Croft,  834. 

V.  Dunn.  715.  716,  720,  721. 

V.  Hewitt,   1307. 

V.  Jackson,  235. 

V.  Kingston  Coal  Co.,  138. 

V.  Myers,  205,  228,  241. 

V.  Pierce.  1321. 

V.  Safe   Deposit   &   Trust   Co., 
634. 


1416 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Myers  v.  White,  527. 
V.  Wright,  1264. 
Mygatt  V.  Coe,  416,  915. 
Myrick  v.  Bill,  504,  505,  542,  545, 

1127. 
Myrover  v.  French,  935. 


N. 


Nachbour  v.  Wiener,  855. 

Naill  V.  Maurer,  462,  463. 

Nalle  V.  Paggi,  758. 

Napa  V.  Rowland,   972. 

Napier  v.   Bulwinkle,   1031. 

Napper  v.  Sanders,  295. 

Nason  v.  Grant,  1318. 

Natchez   v.   Vondervelde,   403. 

National  Bank  of  Athens  v.  Dan- 

forth,  1302. 
National    Bank    of    Commerce    v. 

Licking  Valley   Land  &  Mining 

Co.,   1051. 
National    Bank   of    D.    O.    Mills   & 

Co.  V.  Union  Ins.  Co.,  1209. 
National  Exchange  Bank  v.   Cun- 
ningham, 897. 
National   Guaranteed    Manure   Co. 

V.  Donald,  732. 
National    Life    Ins.    Co.    of    Mont- 

pelier  v.  Lee,  758. 
National   Life   Ins.    Co.   of  United 

States  V.  Minch,  1088. 
National  Oil  Refining  Co.  v.  Bush, 

151,  799. 
National  Union  Bank  v.  National 

Mechanics'  Bank,  388. 
National  Union  Bank  at  Davor  v. 

Segur  751,  757. 
National     Union     Bldg.    Ass'n    v. 

Brewer,   853. 
Nau  V.  Brunette,  1271. 
Naundorf  v.  Schumann,  622. 
Nave  V.  Berry,  106,  573. 

V.  Smith,  404. 
Naylor  v.  Cox,  1036. 

V.  Field,   417. 
Nazer  v.  Ware,  1184. 
Neal  V.  Brockhan,  512. 

V.  Henry,  659. 
Neale  v.  Mackenzie,  130,  789. 
Nebraska  v.  Iowa,  1035-1037. 
Nebraska    Loan    &    Trust    Co.    v. 

Smassall,  508. 
Nebraska  Ry.  Co.  v.  Culver,  1000. 
Needham  v.  Allison,  555,  556. 
V.  Branson,  381. 


Neel  V.  Beach,  623. 

V.  Neel,  562. 
Neelly  v.  Lancaster,  495,  497,  502. 
Neely  v.  Boyce,  334. 

V.  Butler,  489. 

v.  Grantham,  258. 

V.  Hoskins,  163,  165. 
Neff  V.  Reed,  717. 
Negus  V.  Becker,  727. 
Neil  v.  Johnson,  411. 

V.  Keese,  229,  230. 

V.  Neil,  951. 
Neilson  v.   Iowa  Eastern  Ry.  Co., 
1302. 

V.  Lagow,  47. 
Neligh  V.  Michenor,  1171. 
Nellis  V.  Lathrop,  124,  786,  791. 

V.  Nellis,  57. 
Nelson  v.  Brown,  1218,  1219. 

V.  Clay,  391,  396,  397. 

V.  Davis,  47,   215,  860. 

V.  Murfee,   1321. 

V.  Sims,  1085. 

V.  Thompson,  856. 

V.  Webb,  1322. 
Nes  V.  Ramsay,  63,  64. 
Nessler  v.  Neher,  1309. 
Neumoyer  v.  Andreas,  746. 
Nevada  Ditch  Co.  v.  Bennett,  662. 
Neves  v.  Scott,  237. 
Nevitt  V.  Bacon,  1255. 

V.  Woodburn,  359. 
Nevius  V.  Gourley,  159. 
New  V.  Sailors,  1184. 

V.  Wheaton,  1089. 
New  Bedford  R.  Co.  v.  Old  Colony 

R.  Co.,  1073. 
New  England  Loan  &  Trust  Co.  v. 
Spitler,  1153,  1155. 

V.  Young,  1320. 
New    England    Mortgage    Security 

Co.  V.  Buice,  629. 
New  England  Trout  &  Salmon  Club 

V.  Mather,  826. 
New    Ipswich    W.    L.    Factory    v. 

Botchelder,  709. 
New  Orleans,  J.  &  G.  N.  R.  Co.  v. 
Field,  590. 

V.  Moye,  974,  975. 
New  Orleans  &  S.  R.  Co.  v.  Jones, 

1072. 
New  Salem  v.  Eagle  Mill  Co.,  1022. 
New  South  Meeting  House  in  Bos- 
ton, In  re,  697. 
New  York  v.  Law,  686. 

V.  Mabie,  82,  96,  97. 


TABLE  OF  CASES. 


1417 


[references   ABE   TO   PAGES.] 


New   York   Bay   Cemetery   Co.   v. 

Buckmaster,  699. 
New  York  Life  Ins.  Co.  v.  Mayer, 
449. 

V.  White,  1083. 
New  York,  W.  S.  &  B.  Ry.  Co.,  In 

re,  1073. 
New  York  &  N.  E.  R.  Co.  v.  Rail- 
road Com'rs,  714. 
Newall  V.  Wright,  1259. 
Newark  v.  Watson,  980. 
Newbold  v.  Peabody  Heights  Co., 
763. 

V.  Ridgway,  481. 

V.  Smart,  392. 
Newbrough  v.  Walker,  98. 
Newby  v.  Cox,  462. 

V.  Skinner,  263. 
Newcomb  v.  Bonham,  1170. 

V.  Harvey,  779. 
Newcomen    v.    Coulson,    724,    725, 

734. 
Newcomer  v.  Orem,  261. 
Newell  V.  Hancock,  821, 
Newhall  v.  Ireson,  894. 

V.  Lynn  Five  Cents  Sav.  Bank, 
467,  1273. 

v.  Wheeler,  47,  218. 
Newkerk  v.  Newkerk,  169. 
Newland  v.  Newland,  333. 
Newlin  v.  Beard,  934. 
Newman  v.  Anderton,  775. 

V.  Bank  of  California,  402. 

V.  Chapman,  1098,  1100. 

V.  Rusham,  1115,  1116. 

V.  Rutter,  178. 
Newport   v.   Taylor,   821. 
Newport  Water  Works  v.   Sisson, 

267. 
Newsom  v.  Holesapple,  329. 

V.  Prior,  888. 
Newson  v.  Smythies,  94. 
Newton  v.  Allin,  130. 

V.  Bealer,   928. 

V.  Bronson,  221. 

V.  Emerson,  919. 

V.  Newton,  962. 

V.  Stanley,   1264. 

V.  Wilson,  775. 
Neylor  v.  Minock,  382. 
Niantic  Bank  v.  Dennis,  1309. 
Nlchol  V.  Lytle's  Lessee,  584. 

V.  Thomas,  1153,  1155. 
Nicholas  v.  Chamberlain,  711. 

V.  Purczell,  507,  509. 
Nicholls  V.  O'Neill,  411. 


Nicholls  V.  Sheffield,  356. 

V.  Wentworth,  1021,  1023. 
Nichols  V.   Allen,   229. 

V.  Baxter,  1208-1210. 

V.  Boston,  592. 

V.  Council,  1005. 

V.  Eaton,  1140,  1141. 

V.  Gladden,  315,  317. 

V.  Lee,  1230. 

V.  Luce,  714,  715. 

V.  New     England     Furniture 
Co.,  886. 

V.  Nichols,  406. 

V.  O'Neill,  411. 

V.  Overacker,  1129. 

V.  Walter,  912. 
Nicholson  v.  Caress,  46. 

V.  Cousar,  300. 

V.  Halsey,  242. 

V.  Munigle,  784. 
Nickell  V.  Tomlinson,  450. 
Nickells  v.  Atherstone,  856,  857. 
Nickerson  v.  Buck,  944. 
Nicklin  v.  Betts  Spring  Co.,  1186. 
Nicodemus  v.  Young,  865. 
Nicoll  v.  New  York  &  Erie  R.  Co., 
164,  166. 

V.  Ogden,  237,  239,  387,  433. 

v.  Scott,  622. 
Nidever  v.  Ayers,  1092. 
Niehaus  v.  Faul,  1134. 

V.  Shepherd,  1035. 
Nightingale  v.  Burrell,  58,  60,  326. 

V.  Hidden,  205,  213. 

V.  Nightingale,  246. 
Niles  V.  Ransford,  124. 
Nims  V.  Bigelow,  469. 

V.  Sherman,  123. 
Nininger  v.  Norwood,  663. 
INitzell  V.  Paschall,  736. 
Nixon  V.  Porter,  999. 
Noakes  v.  Rice,  1192. 
Noble's  Will,   In  re,  947. 
Noble  V.  Andrews,  248. 

v.  Sylvester,  517. 

V.  Teeple,  375. 
Noblesville  v.  Lake  Erie  &  W.  R. 

Co.,  973. 
Noblitt  V.  Beebe,  382. 
Noden  v.  Griffiths,  342. 
Noe  V.  Kern.  222. 

V.  Montray,  1306. 
Noel  V.  Garnott.  457. 

V.  Harvey.  623. 

V.  Jevon,   437. 


1418 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Noell  V.  Gaines,  1254. 
Noftsger  v.  Barkdoll,  680. 
Nokes'  Case,  97. 
Nolan  V.  New  Britain,  1022. 
Noonan  v.  Albany,  663. 

V.  Ilsley,  914,  1042. 

V.  Lee,   909. 

V.  Orton,  756. 

V.  Pardee,  669. 
Norcross  v.  Griffiths,  890. 

V.  James,  753,  754,  765. 

V.  Norcross,    1196. 
Nordholt  v.  Nordholt,  226,  1148. 
Nordyke  &  Marmon  Co.   v.  Gery, 

1209. 
Norfleet  v.  Cromwell,  702,  717,  756, 

758,  766. 
Norfolk's  Case,  Duke  of,  347,  358. 
Norfolk  V.  Arbuthnot,  52. 

V.  Browne,  227. 

V.  Cooke,  597. 
Norfolk    State    Bank    v.    Murphy, 

1314. 
Normal  School  Dist.  No.  3  v.  Pain- 
ter, 979. 
Normille  v.  Gill,  728. 
Norris  v.  Gould,  392. 

V.  He,  1012,  1098,  1099. 

V.  Morrill,  88. 

V.  Morrison,  435,  436,  510,  511. 

V.  Moulton,  511. 

V.  Wilkinson,  1285. 
North  V.  Henneberry,  880,  881. 

V.  James,  1004. 

V.  Philbrook,   47. 
Northcutt  V.  Whipp,  431,  432. 
Northen  v.  Carnegie,  79. 
Northern    Bank    of    Kentucky    v. 

Roosa,  84,  1308. 
Northern  Pac.   R.  Co.  v.  Cannon, 
844. 

V.  Majors,  844. 
Northern    Transportation    Co.    v. 

Chicago,  668,  670. 
Northern  Trust  Co.  v.  Snyder,  117. 
Northumberland  v.  Cobleigh,  923. 
Northwestern  Land  Co.  v.  Dewey, 

1313. 
Norton  v.  Babcock,  904. 

V.  Craig,  555. 

V.  Dashwood,  547,  925. 

V.  Davis,  925. 

V.  McDevitt,  493. 

V.  Mitchell,  842. 

V.  Norton,  508. 

V.  Palmer,  1229,  1256.  ' 


Norton  v.  Ray,  218. 

V.  Warner,  1263. 
Norvell  v.  Camm,  844,  845. 
Norwich  Fire  Ins.  Co.  v.  Boomer, 
1208,  1210. 

V.  Woodbury,  1210. 
Norwood  V.  Marrow,  484. 
Notte's  Appeal,  1129. 
Nottingham   Patent   Brick   &  Tile 

Co.  V.  Butler,  766,  767. 
Nowell  V.  Roake,  627,  629,  630. 
Nowlin  V.  Reynolds,  1013. 
Nowlin  Lumber  Co.  v.  Wilson,  682. 
Nowling  V.  Mcintosh,  1130. 
Noyes  v.  Anderson,  187,  188,  1254. 

V.  Colby,  588. 

V.  Collins,  1036. 

V.  Dyer,  1016. 

V.  Hall,  1265. 

V.  Hemphill,  731. 

V.  Kramer,  1289. 

V.  Southworth,  963. 

V.  Stone,  565. 
Nudd  V.  Hobbs,  593,  825. 
Nugent  V.  Riley,  1177. 
Null  V.  Howell,  440. 
Numsen  v.  Lyon,  248. 
Nunn  V.  Givhan,  411. 
Nutt  V.  Norton,  963,  964. 
Nuttall  V.  Bracewell,  656,  661. 
Nutter  V.   De  Rochemont,   1004. 

V.  Fouch,  448. 

V.  Russell,  306,  342. 
Nye  V.  Hoyle,  754,  756,  757. 

V.  Lowry,  919. 

V.  Patterson,  475. 

V.  Taunton  Branch  R.  Co.,  445, 
467. 

O. 

Oakley  v.  Oakley,  471. 

Oastler  v.  Henderson,  855,  856. 

Gates  V.  Beckworth,  1004. 

V.  Feith,  780. 
Ober  V.  Gallagher,  1292,  1293. 

V.  Pendleton,    932. 
Obert  V.  Dunn,  671. 

V.  Obert,  581. 
O'Brien  v.  Ball,  135. 

V.  Dougherty,  337. 

V.  Elliott,   461. 

V.  King,  895. 

V.  O'Brien,  577. 

V.  Putney,  1099. 
Occum    Co.   V.    A.   &   W.    Sprague 
Mfg.  Co.,  680. 


TABLE  OF  CASES. 


1419 


[references  are  to  pages.] 


Ocean  Beach  Ass'n  v.  Brinley,  437. 
Ocean  Grove  Camp  Meeting  Ass'n 

V.  Asbury  Park,  667. 
O'Connell  v.  Bryant,  895. 

V.  Duke,  878. 
O'Conner  v.  O'Conner,  1218. 
O'Connor  v.  Memphis,  97. 

V.  Pittsburgh,  816. 

V.  St.  Louis,  K.  C.  &  N.  R.  Co., 
815. 
Odd  Fellows'  Ass'n  v.  Hegele,  692, 

733. 
Oddie  V.  Brown,  364. 
Odell  V.  Montross,  1215,  1216. 

V.  Odell,  363,  364. 

V.  Solomon,  104. 
Odom  V.  Riddick,  1155. 
O'Donnell  v.  Penney,  583,  585. 

V.  White,  232. 
O'Ferrall  v.  Simplot,  474,  478. 
O'Gara  v.  Neylon,  482. 
Ogbourne  v.  Ogbourne,  471. 
Ogburn's  Estate,  In  re,  1125. 
Ogden  V.  Jennings,  883,  897. 

V.  Ogden,    415,    492,    511,    512, 
1012. 

V.  Stock,  545,  546. 
Ogilvie  V.  Hull,  129,  793. 
Ogle  V.  Reynolds,  616. 
Oglesby  v.  Hollister,  1009. 
Ognel's  Case,  795. 
Ogontz  Land  &  Improvement  Co.  v. 

Johnson,  765. 
O'Hara  v.  Booth,  1319. 

V.  Dudley,  234. 

V.  Richardson,  1008. 
O'Harra  v.  Stone,  497. 
O'Hear  v.  De  Goesbriand,  697,  730. 
Okeson  v.  Patterson,  1021,  1024, 
Ohio  &  M.  Ry.  Co.  v.  Barker,  1016. 
Ohling  V.  Luitjens,  1266. 
Ohmer  v.  Boyer,  228. 
Oland  V.  Burdwick,  524. 
Olcott  V.  Bynum,  229,  232. 
Old  South  Soc.  V.  Wainwright,  999. 
Oldershaw  v.  Holt,  790. 
Oldham  v.  Henderson,  412. 

V.  Sale,  449. 
Olds  V.  Cummings,  1230. 
Oldstein     v.     Firemen's    Building 

Ass'n,  655. 
O'Leary   v.    Brooks    Elevator   Co., 

650. 
Olin  v.  Henderson,  584. 
O'Linda  v.  Lothrop,  717,  729,  809, 
896. 


Olivant  v.  Wright,  64. 
Oliver  v.  Davy,  1302. 

V.  Dickinson,  897. 

V.  Hook,  703,  708,  732. 
Olliffe  V.  Wells,  229. 
Olmevany  v.  Jaggers,  660. 
Olmsted's  Estate,  958,  960, 
Olmstead  v.  Abbott,  681. 
Olney  v.  Fenner,  688,  1026,  1029, 

V.  Hull,  285,  337. 

V.  Vharf,  815. 
Olson  V.  Merrill,  S2T. 

V.  Northwestern  Guaranty 

Trust  Co.,  1233. 

V.  Schultz,  105. 
Olwine  v.  Holman,  1010. 
Omaha  v.  Hawver,  975. 
Omaha  &  Grant  Smelting  &  Refin- 
ing Co.  V.  Tabor,  393. 
O'Neal  V.  Seixas,  1078. 
O'Neil  V.  Webster,  926. 
O'Neill  V.  Annett,  972. 

V.  Capelee,  1181. 

V.  Clark,  1221. 

V.  Dringer,  1320. 

V.  Wabash        Ave.        Baptist 
Church  Soc,  1310. 
Onions  v.  Tyrer,  959. 
Onstott  V.  Murray,  1033. 
Ophir  Silver  Min.  Co.  v.  Carpenter, 

662. 
Oppenheim  v.  Henry,  335. 
Oregon  &  Washington  Trust  Inv. 

Co.  V.  Shaw,  1232. 
Orena  v.  Santa  Barbara,  895. 
Orford  v.  Benton,  494. 
Organ  v.  Memphis  &  Little  Rock 

R.  Co.,  1073. 
Oriental    Hotel    Co.    v.    Griffiths, 

1302. 
Original  Hartlepool  Collieries  Co. 

V.  Gibb,  828. 
O'Riley  v.  Diss,  694. 
Orman  v.  Day,  693. 
Orme's  Case,  214. 
Ormerod  v.  Todmorden  Joint  Stock 

Mill  Co.,  661. 
Ormsby  v.  Tarascon,  1271. 
O'Rorke  v.  Smith,  708. 
O'Rourke  v.  Beard,  954. 

v.  O'Connor,  1089,  1319. 

V.  Sherwin,  625. 
Orr  V.  Foote,  584. 

V.  Hodgson,  1158,  1160. 
Orrick  v.  Durham,  1291. 


1420 


TABLE   OF   CASES. 


[references  are  to  pages.] 


Osage  City  v.  Larkin,  977. 
Osbom  V.  Carr,  1243. 
V.  Cook,  947. 
V.  Horine,  449. 
V.  Osborn,  228,  392. 
V.  Rogers,  473. 
V.  Strachan,  512. 
Osborne  v.  Butcher,  730. 
V.  Cabell,  1220. 
V.  Endicott,  229,   230.  . 
Oscott  V.  Moore,  533. 
Osgood  V.  Abbott,  165,  180. 

V.  Franklin,  244,  623,  624. 
Osterberg  v.  Union  Trust  Co.,  1320. 
Ostrom  V.  San  Antonio,  817. 
Oswald  V.  Wolf,  732. 
Otis  V.  Gregory,  1290. 
V.  McClellan,  353. 
V.  McMillan,  854. 
V.  Parshley,  438. 
V.  Spencer,  929. 
Otley  V.  Manning,  1115. 
Ott  V.  Kreiter,  717. 
Ottawa  V.  Yentzer,  974,  1033. 
Otterback  v.  Bobrer,  349. 
Ottumwa  Lodge  v.  Lewis,  554,  726. 
Ottumwa  Woolen  Mill  Co.  v.  Haw- 
ley,  537,  539.  547,  897,  1173. 
Ould  V.  Washington   Hospital  for 

Foundlings,  363. 
Oury  V.  Goodwin,  717. 
V.  Saunders,  1290. 
Outcalt  V.  Appleby,  76. 
Outland  v.  Bowen,  333. 

V.  Outland,  1279. 
Outton  V.  Dulin,  781,  790,  796. 
Overcash  v.  Ritchie,  402. 
Overfield  v.  Christie,  1001. 
Overman's  Appeal,  1141. 
Overman  v.  Sasser,  549. 
Overseers  of  Poor  v.  Sears,  47. 
Owen  V.  Baker,  926. 
V.  Boyle,  804. 
V.  Hyde,  484,  564,  565. 
V.  Kilpatrick,  1099. 
V.  Morton,  390. 
V.  Robbins,  433,  434,  443. 
V.  Slatter,  448.  466. 
V.  Switzer,  629. 
Owens  V.  Claytor,  1280. 
V.  Lewis,   680. 
V.  Owens,  1161. 
Owings  V.  Emery,  562. 
Owsley  V.  Ead,  640. 
V.  Harrison,  345. 


Oxford     Township     v.     Columbia, 

1006. 
Oxley  V.  James,  146. 

V.  Lane,  1136. 
Oxton  V.  Groves,  894. 
Oxnard  v.  Blake,  936,  1176. 


P. 


Pace  V.  Potter,  588. 

Pacific    Nat.    Bank    v.    Windram, 

1141. 
Pacific  Postal  Telegraph  Cable  Co. 

V.  Irvine,  812. 
Packard  v.  Johnson,  390. 

v.  Packard,  334. 

V.  Ryder,  602. 
Packenham's  Case,  752. 
Packer  v.  Bird,  594. 

V.  Rochester  &  S.  R.  Co.,  1194. 

V.  Welsted,  714. 
Paddock  v.  Stout,  1302. 
Padelford  v.  Padelford,  565,  566. 
Padfield  v.  Padfield,  223. 
Page  V.  Branch,  1009. 

V.  Estes,  418. 

V.  Fowler,  525. 

V.  Kinsman,  122. 

V.  Murray,  765,  769. 

V.  Ordway,  1184. 

V.  Page,  230,  449. 

V.  Pierce,  1228. 

V.  Scheibel,  823. 

V.  Symonds,  699. 

V.  Thomas,  387. 

V.  Waring,  1079,  1080. 

V.  Webster,  4U0. 

V.  Whidden,  174. 
Paget,  In  re,  617. 

V.  Marshall,  879. 

v..  Melcher,  284,  308. 
Pahlman  v.  Shumway,  1309. 

V.  Smith,  623. 
Paige  V.  Chapman,  1231. 

V.  Paige,  387,  442. 
Paine's  Case,  491. 
Paine  v.  Barnes,  616. 

V.  Chandler,  705,  707,  709. 

V.  Forsaith,  943. 

V.  Hutchins,  1018. 

V.  Jones,  1219. 

V.  Meller,  265. 

V.  Mooreland,  1097. 

V.  Woods,    596,    598,    599,    880.- 
891. 
Paisley  v.  Holzshu,  219,  255. 


TABLE  OF   CASES. 


[references  are  to  pages.] 


Palk  V.  Clinton.  1242. 
Palmer  v.  Cook,  320. 

V.  Dosch,  585. 

V.  Dougherty,  896. 

V.  Edwards.  781. 

V.  Foote,  1195. 

V.  Forbes,  540. 

V.  Ford,  187. 

V.  Holford,  351. 

V.  Horn,  tjl. 

V.  Larchmont  Electric  Co.,  811. 

V.  Palmer,  732. 

V.  Ryan,  163. 

V.  Sterling,  228. 

V.  Union  Bank,  562. 

V.  Waddell,  655. 
Pancake  v.  Cauffman,  1180. 
Pancoast  v.  Duval,  1260. 
Panton  v.  Holland,  670,  671. 
Papillon  V.  Voice,  313,  315. 
Parberry  v.  Johnson,  1304. 
Pardee  v.  Lindley,  1270. 

V.  Treat,  1220. 
Parfltt  V.  Hember,  304. 

V.  Lawless,  953. 
Paris  V.  Hulett,  1258,  1277. 
Parish  v.  Ferris,  65. 

V.  Kaspare,  682,  1027. 

V.  Murphree,  1112. 

V.  Whitney,  751. 
Park  V.  Bates,  98,  913. 

V.  Cheek,  912. 

V.  Marshall,  265. 

V.  Pratt,  1120. 
Parke  v.  Neeley,  1091. 

V.  Seattle,  670,  672. 
Parker  v.  Banks,  1254. 

V.  Beasley,  1237,  1238. 

V.  Benjamin,  879. 

V.  Bowles,  388. 

V.  Brown,  587,  900. 

V.  Chambliss.  575. 

V.  Converse,  246,  247. 

V.  Coop,  231. 

V.  Foote,  1021,  1026,  1031. 

V.  Geary,  799. 

V.  Gregory,  1011. 

V.  Hotchkiss,  1030. 

V.  Logan,  229,  230. 

V.  Mercer,  1228. 

V.  Nightingale,    763,    765,    767, 
768. 

V.  Parker,    50,    167,    329,    485, 
1007. 

V.  People,  601. 

V.  Prescott,  1092. 


Parker  v.  Proprietors  of  Locks  and 
Canals,  390. 

V.  Ross,  288,  305. 

V.  Salmons,  937. 

V.  Sears,  624. 

V.  Wallis,  1007. 

V.  West    Coast    Packing    Co., 
730. 
Parkersburg   Nat.    Bank   v.    Neal, 

1013. 
Parkham  v.  Thompson,  528. 
Parkhurst  v.  Harrower,  57,  64. 

V.  Van  Cortland,  701. 

V.  Watertown    Steam    Engine 
Co.,  1229. 
Parkinson  v.  Hanbury,  1203. 

V.  Sherman,  1221. 
Parkman  v.  Bowdoin,  60,  61. 

V.  Welch,  1225. 
Parks  V.  Bishop,  723,  724. 

v.  Boston,  126. 

V.  Jackson,  1099. 

V.  McClellan,  482. 

V.  Newburyport,  665,  1030. 
Parmelee  v.  Oswego  &  S.  R.  Co., 

162. 
Parmenter  v.  Oakley,  1233. 

V.  Webber,  802. 
Parradine  v.  Jane,  791. 
Parret  v.  Shaubhut,  1081. 
Parrish  v.  Parrish,  442,  473. 

V.  Ross,  75. 
Parrott  v.  Barney,  572. 
Parsons  v.   Baltimore  Building  & 
Loan  Ass'n,  759,  760. 

v.  Boyd,  244,  376. 

v.  Camp,  556. 

V.  Hoyt,  1094. 

V.  Johnson,  703,  708. 

V.  Parsons,  13. 

V.  Trustees  of  Atlanta  Univer- 
sity, 978. 

V.  Welles,  1236. 
Partee  v.  Stewart,  1124. 
Partridge  v.  Dorsey's  Lessee,  68. 

V.  First   Independent  Church, 
699. 

v.  Gilbert,   691,   692,   712,   727, 
733. 

v.  Luce,  890. 

V.  Scott,  670. 
Pascault  V.  Cochran,  860. 
Paschall  v.  Passmore,  162. 
Patrick's  Appeal,  1228,  1229. 
Patrick  v.  Colerick,  683. 


1422 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Patrick  v.  Howard,  930. 
Patten  v.  Deshon,  781,  796. 

V.  Fitz,  907. 

V.  Moore,  243,  1094,  1095. 

V.  Scott,  1005. 
Patterson  v.  Arthurs,  905. 

V.  Birdsall,  1248. 

V.  Central  Canada  Loan  &  Sav. 
Co.,    571. 

V.  Edwards,  1289. 

V.  Hansel,  125. 

V.  Lanning,  405. 

V.  Lawrence,  644,  1148. 

V.  Mills,  1251. 

V.  Nixon,  1118. 

V.  Patterson,  507. 

V.  Snell.  882. 

V.  Stoddard,  139. 

V.  Sweet,  905. 

V.  Wilson,  627,  630. 
Patton  V.  Axley,  520. 

V.  Brown,  421. 

V.  Ludington,  333. 

V.  Moore,  545. 

V.  Smith,  1260. 

V.  Western     Carolina     Educa- 
tional Co.,  729. 
Paul  V.  Carver,  819,  893,  894. 

V.  Chouteau,  229. 

V.  Connersville  &  N.  J.  R.  Co., 
183,  1086. 

V.  Frierson,  284. 

V.  Hazleton,  602,  679. 

V.  Nurse,  106. 

V.  Paul,  483,  509. 
Paulsen  v.  Manske,  1300,  1301. 
Paxton  V.  Harrier,  1225. 
Paxton  &  H.    Irrigating  Canal   & 
Land    Co.    v.    Farmers'    &    Mer- 
chants'  Irrigating  &  Land   Co., 
717. 
Payne  v.  Avery,  1288. 

V.  Decker,  470,  471. 

V.  Dotson,  465. 

V.  Johnson,  629,  631. 

V.  Parker,  410,  411,  866. 

V.  Payne,  415,  493. 

V.  Rogers,  104. 
Payson  v.  Bumham,  769. 
Peabody  v.  Hewett,  867. 

V.  Leach,  1009. 

V.  Roberts,  1265. 

V.  Tarbell,  1009. 
Peabody   Heights    Co.    v.    Sadtler, 
895. 

V.  Willson,  763,  767. 


Peachy  v.  Somerset,  186. 
Peacock  v.  Eastland,  214. 

V.  Purbis,  528. 

V.  Stott,  246. 
Pearce  v.  Gardner,  631. 

V.  McClenaghan,  734. 

v.  Scotcher,  594. 

V.  Wilson,  1191. 
Pearis  v.  Covilland,  393. 
Pearks  v.  Moseley,  348,  361. 
Pearsall  v.  Post,  824,  972. 
Pearson  v.  King,  1120. 

V.  Miller,  1128. 

V.  Wartman,  1282. 
Pease  v.  Christ,  906. 

V.  Gibson,  530. 

V.  Pilot  Knob  Iron  Co.,  1272. 

V.  Warren,  1227. 
Peay  v.  Peay,  432. 
Peck's  Appeal,  968. 
Peck  V.  Carpenter,  392. 

V.  Gary,  1153. 

V.  Conway,  763,  764,  766,  767, 
769. 

V.  Denniston,  895,  896. 

V.  Goodberlett,  664. 

V.  Harrington,  664. 

V.  Ingersoll,  120. 

V.  Jenness,  6. 

V.  Laubach,  664. 

V.  Lloyd,  738. 

V.  Lockwood,  826. 

V.  Mallams,  887. 
Peckham  v.   Haddock,  1175,   1282. 

V.  Hadwen,  435. 
Peden  v.  Calvins,  1009. 

V.  Chicago,  R.  I.  &  P.  Ry.  Co., 
163,  165,  751,  756. 
Peebles  v.  Acker,  1282. 

V.  Reading,  220. 
Peed  V.  McKee,  1191. 
Peek  V.  Roe,  652. 
Peere  v.  Castro,  1238. 
Peers  v.  McLaughlin,  1284. 
Pell  V.  McElroy,  1089. 

V.  Ulmar,  1200. 
Pella  V.  Scholte,  979. 
Pells  V.  Brown,  64,  329,  358. 
Pelton  V.  Place,  856. 
Pemberton  v.  Barnes,  195,  273. 
Pence  v.  Arbuckle,  869. 
Pender  v.  Lancaster,  1130. 
Pendergest  v.  Heekin.  1127. 
Pendill  v.  Marquette  County  Agri- 
cultural Soc,  1008,  1041. 


TABLE  OF  CASES. 


1423 


[references  are  to  pages.] 


Pendleton  v.  Kinney,  1281. 
Penfleld  v.  Tower,  257. 
Penfold  V.  Warner,  468. 
Penhallow  v.  Dwight,  525,  528. 
Pennant's  Case.  178-180,  182. 
Pennell's  Appeal,  261,  263. 
Penniman's  Will,  In  re,  960. 
Pennock  v.  Coe,  1172. 

V.  Lyons,  177. 
Pennoyer  v.  Allen,  652. 

V.  Wadhams,  1139. 
Pennsylvania  R.  Co.  v.  St.  Louis, 

A.,  &  T.  H.  R.  Co.,  805. 
Pennsylvania  Salt  Mfg.  Co.  v.  Neel, 

1081. 
Penny  v.  Fellner,  789. 
Penny    Pot    Landing   v.    Philadel- 
phia, 972. 
Pense  v.  Hixon,  448. 
Pentland  v.  Keep,  739,  1027. 
Penton  v.  Robart,  548. 
Penzel  v.  Brookmire,  1228. 
People  V.  Bridges,  600. 

V.  Canal  Appraisers,  594. 

V.  Collison,  601. 

V.  Common  Council  of  Detroit, 
821. 

V.  Detroit    Lead    Works,    652- 
654. 

V.  Eaton,  812.  ^ 

V.  Foss,  809. 

V.  Kirk,  595. 

V.  Lambier,  1036. 

V.  Morrill,  592. 

V.  New  York  &  S.  L  Ferry  Co., 
592. 

V.  Newburgh  &  S.  Plank  Road 
Co.,  820. 

V.  Piatt,  601. 

V.  Reed,  974. 

V.  Silberwood,  595. 

V.  Simon,  1103,  1105. 

V.  Tibbetts,  591. 

V.  White,  194. 

V.  Williams,  517. 
People's  Gas  Co.  v.  Tyner,  518,  519, 

667. 
People's  Ice  Co.  v.  Davenport,  599. 
People's  Loan  &  Exchange  Bank  v. 

Garlington,  212. 
Peoria  v.  Darst,  300. 

V.  Johnston,  818. 
Pepin  County  v.  Prindle,  172. 
Pepper's  Appeal,  635,  1232,  1234. 
Pepper  v.  O'Dowd,  1018. 

V.  Thomas,  387. 


Perceval  v.  Perceval,  300. 
Percival  v.  Percival,  464. 
Perdue  v.  Brooks,  1214. 
Pereau  v.  Frederick,  926. 
Perin  v.  Megibben,  442. 
Ferine  v.  Dunn,  1240. 
Perkes  v.  Perkes,  958. 
Perkins'  Appeal,  240. 
Perkins  v.  Adams,  1038. 

V.  Dibble,  1235,  1236. 

v.  Fielding,  974. 

V.  Fisher,  340,  360. 

V.  Maine   Cent.   R.    Co.,    1072. 

V.  Nichols,  232,  233. 

V.  Perkins,  695. 

V.  Peterson,  529. 

V.  Quigley,  1125. 

V.  Sterne,  1227,  1230,  1256. 
Perley  v.  Chandler,  809. 

V.  Hilton,  1022. 

V.  Langley,  824. 
Pernam  v.  Wead,  888. 
Perot's  Appeal,  257. 
Perot  V.  Cooper,  1180. 
Perrin  v.  Blake,  316. 

V.  Garfield,  1028,  1029. 

V.  Granger,  730. 

V.  Lepper,  112. 

V.  Leverett,  1315. 

V.  Perrin,  1045. 
Perrot  v.  Perrot,  563,  577. 
Perry's  Appeal,  1228. 
Perry  v.  Aldrich,  784. 

V.  Board  of  Missions,  1282. 

V.  Carr,  140,  556,  567,  574. 

V.  Davis,  176. 

V.  Jones,  307,  342. 

V.  Mechanics'    Mut.    Ins.    Co., 
416. 

V.  New  Orleans,  M.  &  C.  R.  Co., 
810. 

V.  Pennsylvania  R.  Co.,  685. 

V.  Pratt,  582. 

V.  Ross,  1129. 

V.  Snow,  720. 
Personette  v.  Cronkhite,  1112. 
Petefish  V.  Buck,  471. 
Peter  v.  Beverly,  244,  613,  614,  616, 

623-625. 
Peters  v.   Bowman,   904,   911,   915, 
916. 

V.  Cartier,  1091. 

v.  Jamestown  Bridge  Co.,  1230. 

V.  Little,  1023. 

V.  Newkirk,  785. 

V.  State,  600.  60l. 

V.  Tunell,  1287-1289. 


1424 


TABLE  OF  CASES. 


[references   ABE   TO   PAGES.] 


Peterson  v.  Clark,  1213. 

V.  Hornblower,  1132. 

V.  Laik,  1149,  1150. 

V.  McCiillough,  1028. 
Petit  V.  Flint  &  P.  M.  R.  Co.,  633. 
Peto  V.  Pemberton,  788. 
Petray  v.  Howell,  1306. 
Petro  V.  Cassiday,  176. 
Petroleum    Co.    v.    Coal,    Coke    & 

Mfg.  Co.,  91. 
Petsch  V.  Biggs,  86. 
Pettibone  v.  Edwards,  1264. 

V.  Griswold,  1186. 
Pettigrew  v.  Dobbelaar,  882. 

V.  Evansville,  664. 
Pettingill  v.  Devin,  194,  819. 

V.  Porter,  71.5. 
Petts  V.  Gaw,  889. 
Petty  V.  Grisard,  926. 

V.  Petty,  444,  468. 
Petz  V.  Voigt  Brewery  Co.,  102. 
Peugh  V.  Davis,  1170,  1202,  1215, 

1216. 
Peyroux  v.  Howard,  591. 
Peyton  v.  Jeffries,  484. 
Pfeiffer  v.  Matthews,  760. 
Pfyfe  V.  Riley,  1200. 
Phalen  v.  Commonwealth,  10. 
Pharis  v.  Jones,  1010. 
Phayer  v.  Kennedy,  287. 
Phelan  v.  Boylan,  573. 

V.  Brady,  1088,  1089. 
Phelps  V.  Harris,  619. 

V.  Nowlen,  651,  667. 

V.  Phelps,  433. 

V.  Rooney,  1125. 

V.  Sage,  1236,  1237. 

V.  Sullivan,  869. 
Phene's  Trusts,  In  re,  640. 
Philadelphia  v.  Girard,  345,  364. 

V.  Greble,  1319. 
Philadelphia,   W.    &   B.   R.    Co.   v. 

Woelpper,  1173. 
Philbrook  v.  Clark,  1255. 

V.  Delano,  228,  1287. 
Phillips,  Ex  parte,  260. 
Phillips,  In  re,  1211. 

V.  Benson,  1261. 

V.  Brown,  619,  629. 

V.  Covert,  140,  574. 

V.  Davis,  362. 

V.  Ditto,  491. 

V.  Dressier,  729. 

V.  Eiland,  1201. 

V.  Ferguson,  170,  229,  263. 

V.  Halliday,  697. 


Phillips  V.  Harrow,  345,  354. 

V.  Herron,  57. 

V.  Low,  713. 

V.  Medbury,  170,  402. 

V.  Phillips,  706,  708,  709. 

V.  Porter,  889. 

V.  Rhodes,  593,  742. 

V.  Rogers,  68. 

V.  Roquemore,  1319. 

V.  Smith,  564. 

V.  Stevens,  101. 

V.  Stewart,  623. 

V.  Thompson,  871. 

V.  Warner,  1127. 

V.  Winslow,  1173. 
Phinizy  v.  Augusta,  689. 

V.  Guernsey,  265. 
Phipps  V.  Acton,  509. 
"v.  Kelynge,  364. 

V.  Western  Maryland  Ry.  Co., 
812. 
Phoenix    Ins.    Co.    v.    Continental 

Ins.  Co.,  753,  764. 
Phyfe  V.  Riley,  1169. 
Piatt  V.  Hubbell,  404. 
Pickard  v.  Sears,  1046. 
Pickens  v.  Davis,  968. 

V.  Kniseley,  926. 

V.  Rymer,  923. 
Pickering  v.  Pickering,  398. 
Pickett  V.  Jones,  1270. 

V.  Lyles,  421,  423. 

V.  Nelson,  584,  819. 
Pickford  v.  Lynn,  819. 
Pickney  v.  Burrage,  1012. 
Pico  V.  Colimas,  725. 
Pierce's  Estate,  In  re,  1279. 
Pierce  v.  Brown,  124. 

V.  Brown  University,  174. 

v.  Cleland,  701. 

V.  Drew,  812,  813. 

v.  Dyer,  691,  726. 

V.  Emery,  11,  1173. 

V.  Faunce,  1231. 

V.  Fort,  927. 

V.  Frace,  844. 

V.  George,  540. 

V.  Georger,  926. 

V.  Goddard,  537. 

V.  Grimley,  1271. 

V.  Hakes,  302,  919. 

V.  Keator,  742,  747. 

V.  Kneeland,  1276. 

V.  Kusic,  1124. 

V.  Lee,  307. 

V.  Lemon,  651. 


TABLE   OF   CASES. 


1425 


[BEFEBENCES   ABE  TO  PAGES.] 


Pierce  v.  Milwaukee  &  St.  P.  R.  Co., 
1173. 

V.  Pierce,  463,   798. 

V.  Robinson,   1181. 

V.  Rollins,  406. 

V.  Shaw,  1228. 

V.  Spafford,  972. 

V.  Spear.  1313. 

V.  Williams,  472. 
Pierre  v.  Fernald,  651,  1024,  1031. 
Piersol  v.  Roop,  641. 
Pierson  v.  Armstrong,  242,  920. 

V.  Lane,  57. 

V.  Post,  600. 
Piggott  X.  Penrice,  620,  635. 
Pike  V.  Munroe,  595,  892. 

V.  Stephenson,  290. 
Pile  V.  Pedrick,  515. 
Pillow  V.  Roberts,  921. 

V.  Southwest     Virginia     Imp. 
Co.,  407. 

V.  Wade,  449. 
Pillsbury  v.  Alexander,  976. 

V.  Morris.  758,  761. 
Pirn  V.  St.  Louis,  1005. 
Pinch  V.  Anthony,  1282,  1283. 
Pincombe  v.  Rudge,  900. 
Pine  V.  Leicester,  797. 

V.  New  York,  678. 

V.  Shannon,    1264. 
Pingree  v.  McDufBe,  714. 
Pingey  v.  Watkins,  781. 
Pinhorn  v.  Souster,  141. 
Pinkum  v.  Eau  Claire,  183. 
Pinnington  v.  Galland.  714. 
Pinnock  v.  Clough,  231. 
Pintard  v.  Goodloe,  1289. 
Piper  V.  Moulton,  1139. 
Pipkin  V.  Williams,  504.  505. 
Pitcher  v.  Dove,  586. 

V.  Livingston,  912. 
Pitman  v.  Conner,  908. 
Pitts  V.  Lancaster  Mills,   657. 
Pittsburgh     v.     Epping-Carpenter 
Co.,  972. 

V.  Scott.   1073. 
Pittsburg,  C.   &  St.  L.   Ry.   Co.  v. 

Bosworth.   753. 
Pittsburgh  &  C.  R.  Co.  v.  Barker, 

1094. 
Pittsburgh    &    L.    A.    Iron    Co.    v. 

Lake  Superior  Iron  Co.,  583. 
Pittsfleld  Sav.  Bank  v.  Berry,  213. 
Pitzer  v.  Burns,  1255. 
Pitzman  v.  Boyce,  682.   684,   1026. 
Pixley  V.  Bennett,  468. 

Real  Prop.— 90. 


Pizzala  v.  Campbell,  471. 
Placke  V.  Union  Depot  R.  Co.,  815. 
Planner  v.  Scudamore,  287. 
Planters'  Bank  v.  Davis,  322,  493. 
Planters'    Loan    &    Sav.    .^ank   v. 

Dickinson,  1132. 
Plates  Estate,  944. 
Piatt  v.  Eggleston,  760. 

V.  Johnson,    662. 

V.  New  York  &  S.  B.  Rv.  Co., 
1173. 

V.  Squire,   1241. 
Playter   v.    Cunningham,   909. 
Pleasant  v.  Benson,  147. 
Pleasants   v.    Blodgett,    1088. 
Pledger  v.  David,  321. 

V.  Ellerbe,   422,   443. 
Plimpton   V.    Converse,   734,    1023, 
1025. 

V.  Farmers'     Miit.     Fire     Ins. 
Co.,  1209. 

V.  Fuller,  1246. 

V.  Plimpton,  75. 
Plowman  v.  Riddle,  1264,  1290. 

V.  Williams,  904. 
Plumb  V.  Tubbs,  181. 
Plumer  v.  Gutherie,  1179. 

V.  Johnston,  819. 

V.  Robertson,  1089. 
Plumleigh  v.  Dawson,  673. 
Plummer  v.  Ossipee,  1033. 

V.  White,  508. 
Plunket  V.  Holmes,  297,  300. 

V.  Penson.    1195. 
Plymouth  v.  Carver,  756. 
Plympton    v.    Boston    Dispensary, 

75,  76. 
Poage  V.  Wabash,  St.  L.  &  P.  Ry., 

750,   751,   766. 
Poe  V.   Dixon,  1218,  1219. 

V.  Hardie,  1121. 

V.  Paxton,  1289. 
Poindexter  v.  McCannon,  1182. 
Point  Pleasant  Land  Co.  v.  Cran- 

mer,  977. 
Polack  V.  Pioche,  101. 
Poland  V.   Vesper,   511. 
Polden  V.  Bastard.  708. 
Polk  V.  Faris,  312,  315. 
Pollard  V.  Barnes,  1023. 

V.  Noyes.   436,    1223. 

V.  Shaafer,   102. 

V.  Slaughter,    431. 
Pollitt  V.  Kerr.  483. 
Pollock  V.  Maison,  1256. 
Pollstown  Gas  Co.  v.  Murphy,  654. 


1426 


TABLE   OF  CASES. 


[references  are  to  pages.] 


Poison  V.   Ingram,  735,  736. 
Polybank  v.  Hawkins,  411. 
Pomeroy  v.   Mills,   978. 

V.  Rice,    1188. 
Pomery  v.   Partington,   616. 
Pomfret  v.  Ricroft,  714,  725. 
Pomroy  v.  Stevens,  1085. 
Pond  V.  Allen,  1281. 

V.  Clarke,   1188. 

V.  Johnson,  480. 
Ponder  v.  Cheeves,  1011. 

V.  Rhea,  534. 
Pontiac  v.  Carter,  816. 
Pool  V.   Blakie,  415,  495,  497. 

V.  Davis,  930. 

V.  Lewis,    657,    658. 
Poole's  Case,  548,  551. 
Poole  V.  Bentley,  89. 

V.  Gerrard,   504. 

V.  Jackson,  923. 
Poor    V.    Considine,    248,    287-290, 

292. 
Poore  V.  Poore,  947. 
Pope  V.  Allen,  1090. 

V.  Durant,  1254. 

V.  Jacobus,  1263. 

V.  O'Hara,  736. 

V.  Pickett,  295. 

V.  Pope,  970. 
Popplewell   V.   Hookinson,    669. 
Porch  V.  Fries,  499,  502. 
Port  V.  Robbins,  1188. 
Porter  v.  Chandler,  535. 

V.  Durham,  583,  663. 

V.  Fox,  361. 

V.  Hanley,    554. 

V.  Hill,    403. 

V.  Kilgore,   1265. 

V.  King,  1234. 

V.  Lazear,   448. 

V.  Noyes,  469,  906. 

V.  Sevey,  1089. 

V.  Shehan,  593. 

V.  Thomas,  626,  627. 

V.  Turner,    626,   635. 

V.  Terwilleger,    162,    163. 
Portington's  Case,   162,   191,   1140. 
Portis  V.  Parker,  385. 
Portland   v.   Topham,    638. 
Portland  &  W.  V.  R.  Co.  v.  Port- 
land, 972. 
Portsmouth  v.  Shackford.  617,  637. 
Posey  V.  Budd,  57,  68. 
Post  V.  Foxborough,  1092. 

V.  Kearney,  117. 

V.  Pearsall,   824,   972. 


Post  V.  Rohrbach,  358,  359. 

V.  Tradesmen's  Bank,   1217. 

V.  Weil,   764. 
Postal     Telegraph     Cable    Co.     v. 

Eaton,  810. 
Postlethwaite  v.   Payne,   722. 
Poston  v.  Jones,  787. 
Potter    V.    Couch,    106,    355,    1136, 
1137. 

V.  Cromwell,   537,   541. 

V.  Everitt,    470. 

V.  Froment,  658. 

V.  Gardner,  1281. 

V.  Mercer,  89,  90. 

V.  North,   744. 

V.  Stransky,  1234. 

V.  Wheeler,  441. 
Potts  V.  Breneman,   622. 

V.  Gilbert,   1001. 

V.  Roe,   1044. 
Poull  V.  Mockley,  686. 
Pounds  V.  Clarke,  506. 
Powe  V.  McLeod,  1146. 
Powell's  Trusts,  In  re,  647. 
Powell   V.    Bogg,   1024. 

V.  Cheshire,    565,    577. 

V.  Dayton  S.  &  G.  R.  R.  Co., 
265,    568,    572. 

V.  Gossom,  487,  490,  494. 

V.  McAshan,  550. 

V.  Monsen  &  Brimfield  Mfg. 
Co.,  229,  232,  437,  449, 
451,    476,    477,    484. 

V.  Powell,  375,  960. 

V.  Rich,   527. 

V.  Salisbury,  695. 

V.  Sims,   706,   1031. 

V.  Williams,    1195. 
Power  V.  Burd,  1124. 

V.  Cassidy,   257. 

V.  Lester,   1252. 

V.  Tarzeweles,  825. 
Powers,  In  re,  1280. 

V.  Andrews,  1271. 

V.  Bullwinkle,   57. 

V.  Golden  Lumber  Co.,  1241. 

V.  Harlow,  714. 

V.  McFerran,   1093. 

V.  Patten,  1080,  1190. 
Poweshiek    County    v.    Dennison, 

1261. 
Powis  v.  Corbet,  1245. 
Powles  v.  Jordan,  641. 
Pownal  v.  Taylor,  222. 
Powys  V.  Blagrave,  571. 
Poyner  v.   Poyner,   566. 


TABLE   OF  CASES. 


1427 


[BEFEBENCES   ABE   TO   PAGES.] 


Prather    v.    McDowell,    243,     452, 

866. 
Pratt  V.  Alger,  358. 

V.  Bennington   Bank,   1227. 

V.  Churchill,  1012. 

V.  Curtis,    1112. 

V.  H.     M.     Richards     Jewelry 
Co.,  790. 

V.  Hillman,   692. 

V.  Huggins,  1256. 

V.  Lamson,  1030. 

V.  Nixon,  1221. 

V.  Paine,  191. 

V.  Pratt,  509,  510,  1121. 

V.  Skolfield,  443. 

V.  Sweetser,  736. 
Pratte  v.  Coffman,  526. 
Pray  v.  Pierce,  852. 

V.  Stebbins.  379,  381,  382. 
Preble  v.  Hay,  131. 

V.  Maine  Cent.  R.  Co.,  1014. 
Preiss  v.  Campbell,  1132. 
Prendergast  v.  Cassidy,   384. 
Prentice  v.  Geiger,  722. 

V.  Janssen,  1286. 
Prentiss  v.  Warne,  856. 
Presbyterian    Church    in    Newark 

V.  Andruss,  697. 
Prescott  V.  Boucher,  794,  801. 
'v.  De  Forest,  802. 

V.  Edwards,  975-977. 

V.  Nevers,  390. 

V.  Prescott,    955. 

V.  Trueman,  904. 

V.  White.   689,   725.   905. 

V.  Williams,  905. 
Pressgrove   v.    Comfort,    317. 
Pressley  v.  Robinson,   509. 
Presseman  v.  Silljacks,  124. 
Preston  v.  Bosworth,  181. 

V.  Bowman,  888. 

V.  Brant,  283,  284. 

V.  Breckinridge,  1120. 

V.  Brown,    1286. 

V.  Fryer,   1145. 

V.  Hawley,  799. 

V.  Hull,   868. 

V.  Sonora  Lodge.   1302. 
Prettyman  v.  Goodrich,   880. 
Prevot  V.  Lawrence,  125. 
Price  V.  Breckenridge,  976. 

V.  Courtney.  618. 

V.  Dowdy.  1201. 

V.  Hall.   285,    292. 

V.  Hobbs,  4'>5,  476,  477,  480. 

V.  Lyon,  698. 


Price  V.  McConnell,  693. 
V.  McDonald,  1284. 
V.  Maxwell,  961. 
V.  Methodist        Episcopal 

Church,  700. 
V.  Pittsburgh,  Ft.  W.  &  C.  R. 

Co.,  932. 
V.  Powell,  958. 
V.  Price,  11,  13,  464,  481. 
V.  Sisson,   62. 
V.  Thompson,  980. 
V.  Weehawken  Ferry  Co.,  553. 
V.  Worwood,  178. 
Prickett  v.  Atchison,  T.  &  S.  F.  R. 
Co.,  590. 
V.  Parker,  990. 
V.  Ritter,    146-148. 
Priddy  v.  Griffith,  426,  562. 
Priest  V.  Cummings,   1158. 

V.  Wheelock,  lls8. 
Priestley  v.  Johnson,  543. 
h-iimm  V.  Walker,  395. 
Prince  v.  Case,  543,  680,  684. 

V.  Wilbourn,  1025. 
Prindle  v.  Anderson,  87. 
Pringle  v.  Dunn,  1081,  1083,  1088, 
1091. 
V.  Witten.   902. 
Prior  V.  Kiso,  855. 

V.  Sanborn  Co.,  792. 
V.  Swartz,   597. 
Pritchard  v.  Brown,  230. 
Pritchett  v.  Kirkman,  478. 
Pritts  V.   Ritchey,   422. 
Probstfied  v.  Czizek,   1249. 
Proctor  V.  Bishop  of  Bath  &  Wells, 
348. 
V.  Ferebee,  255,  257. 
V.  Gilson,  556. 
V.  Hodgson,  714. 
V.  Jennings.   660. 
V.  Putnam   Mach.  Co..  587. 
Prodgers  v.  Langham,  1116. 
Proffitt    V.    Henderson,    560.    .161. 

564,   565,  579. 
Proprietors      of     Brattle      Square 

Church  V.  Grant.  176,  280. 
Proprietors      of      Kennebec      Pur- 
chase V.  Springer,  1015. 
Proprietors  of  Locks  &  Canals  on 
Merrimack    River    v.    Nashua   & 
L.  R.  Co.,  810. 
Proprietors  of  Mill  Dam  Foundry 

Co.  V.  Hovey,  922. 
Protestant   E.    E.    Soc.    v.    Church- 
man's  Reps..    249. 


1428 


TABLE   OF   CASES. 


[keferences  are  to  pages.] 


Proud  V.  Hollis,  93. 
Front   V.   Roby,  175. 
Prouty  V.  Edgar.  114S. 
Providence    v.    Bullock,    388. 
Providence   County    Sav.    Bank   v. 

Hall,  152. 
Providence    Steam   Engine    Co.    v. 
Providence  &  S.  Steamship  Co., 
591,  592,  597. 
Providence     Tool    Co.    v.    Corliss 

Steam  Engine  Co.,  706-709. 
Provident  Institution  for  Savings 

V.  Jersey  City.  1321. 
Provident    Life    &    Trust    Co.    v. 

Fiss,   915. 
Provolt  V.  Chicago,  R.   I.  &  P.  R. 

Co.,  1072,  1073. 
Provost  of  Beverley's  Case.  309. 
Provost  V.  Calder,  688. 

V.  Morgan's    L.    &    T.    R.    Co., 

186. 
V.  New     Chester    Water    Co., 
813. 
Pruden  v.  Paxton,  377. 
Prugh  V.   Portsmouth  Sav.   Bank, 

1133. 
Pruitt  V.  Ellington.  588. 
Prutsman  v.   Baker,  932,   933. 
Pryor  v.    Stone,   1126. 

V.  Wood,  1263. 
Pugh    V.    Fairmount    Gold    &    Sil- 
ver  Mining  Co.,   1195. 
V.  Good,  1311. 
V.  Holt,   1263. 
V.  Wheeler,  662. 
PugsTey  v.  Aikin,  145,  147. 
Pulitzer    v.    Livingston,    345,    354, 

648. 
Pullen  V.  Rianhard,  213. 
Pumpelly  v.  Green  Bay  &  Missis- 
sippi Canal  Co..  1070. 
Punderson  v.   Brown,   1195. 
Pureell  v.  Lang,  444. 
v.  Mather,    1172. 
Purdy  V.  Hoyt.  283,  305. 

V.  Huntington,   1232,   1234. 
Purefoy  v.  Rogers,  326. 
Purner  v.  Piercy,  522,  531. 
Pursell  v.  Stover,  680. 
Rutland  v.  Hilder,  735. 
Putnam  v.  Story,  307. 
v.  Tuttle,  873. 
v.  Wise,  534. 
Putnam    Free    School    v.    Fisher, 

615,   623-625,   1119. 
Putney  v.  Day,  530. 


Putzel  v.  Drovers'  &  M.  Nat.  Bank. 

727. 
Pyer  v.  Carter,  707,  711. 
Pylant  v.  Reeves,  1289. 
Pynchon  v.   Stearns,  560,  561. 


Q. 


Quarries  v.  Peabody  Ins.  Co.,  1208. 
Queen  Anne's   County  Poor  Trus- 
tees V.  Pratt,  447. 
Quick  V.   Brenner,  477. 

V.  Milligan,  933. 

V.  Taylor,   906. 
Quicksall  v.   Philadelphia,  975. 
Quigley  v.   Birdseye,  1158. 
Quimby  v.  Dill,  73. 
Quinby  v.  Manhattan  Cloth  &  Pa- 
per Co.,  547. 
Quincy  v.  Bull,  813. 
Quincy  v.  .lones,  671,  691,  1032. 
Quinn  v.  Andei'son,  973. 

V.  Brown,    869. 

V.  Kinyon,  512. 

V.  Ladd,  1158,  1159. 

V.  McCarty,  182. 
Quinnerley  v.  Quinnerley,  1084. 
Quintard  v.  Bishop,  730. 
Quintini  v.  Bay  St.  Louis,  651. 
Quivey  v.  Baker,  1045. 


R. 


Raby  v.  Reeves,  751,  774. 

Race  V.  Ward,  741,  824. 

Racomllat  v.  Sansevain,  1081. 

Radburn  v.  Jervis,  13. 

Radcliff  V.  Brooklyn,  650,  671,  816. 

Radford  v.  Folsom,  1177. 

Rafferty   v.    Central   Traction  Co., 

815. 
Ragsdale  v.  Ragsdale,  234. 
Railroad  Co.  v.  Carr,   660. 
Railsback  v.  Walke,  86,  88. 
Raines  v.  Walker,  1044,  1082. 
Raleigh  County  v.  Ellison,  978. 
Raley  v.  Umatilla  County,  164. 
Ralls  V.  Hughes,  482. 
Ralston   v.   Ralston,   426,   485. 

V.  Weston,    1006. 
Ramage  v.  Ramage,  939. 
Ramberg  v.  Wahlstrom,  399. 
Ramboz  v.  Stowell,  1048. 
Ramey  v.  Allison,  1123. 
Ramsay  v.  Hanlon,  257. 

V.  Marsh,  205,  212,  213,  215. 


TABLE   OF   CASES. 


1429 


[references  are  to  pages.] 


Ramsey  v.  Glenny,  1014. 

V.  Hanlon,  258. 
Rand  v.  Garner,  1311. 
Randal  v.  Elder,  1125. 
Randall  v.  Beatty,  968. 

V.  Cleaveland,   575,  577. 

V.  Hazelton,  1270. 

V.  Jacksonville  St.  R.  Co.,  812. 

V.  Josselyn,  329. 

V.  Kreiger,  467,  939. 

V.  McLaughlin,  709. 

V.  Marble,  170,  171. 

V.  Rigby,  782. 

V.  Silverthorn,    1086. 
Randell,  In  re,  856. 
Randolph     v.     East     Birmingham 

Land  Co.,  612. 
Rands  v.  Kendall,  422. 
Rangeley  v.  Midland  Ry.  Co.,  685. 
Rangier  v.  McCreight,  696. 
Rankin  v.  Major,  1264. 

V.  Rankin,  254,  616,  1161. 
Rannels  v.  Rannels,  1013. 

V.  Washington  University, 

481. 
Ranney  v.  Hardy,  1088,  1090. 
Ransom.  In  re,  433. 

V.  Sargent,  1314. 
Raper  v.  Lonsdale,  402. 

V.  Sanders,    632. 
Rapier    v.    Gulf    City    Paper    Co., 
1241. 

v.  Tramways  Co.,  652. 
Raritan     Water     Power     Co.     v. 

Veghte,   736. 
Rasdall   v.   Rasdall,   235. 
Ratcliffe  v.   Mason,  436,  442. 
Ratliffe  v.  Marrs,  870. 
Rausch  V.  Moore,  470. 
Ravenswood  v.  Flemings,  597. 
Raw,  In  re,  258. 
Rawley  v.   Brown,   534. 

V.  Holland,   320. 
Rawllngs  v.  Adams,   492. 

V.  Hunt,  1322. 

V.  Lowndes,   425. 
Rawlins  v.  Buttel.  465. 
Rawson  v.  Bell,  702. 

V.  School      District      in      Ux- 
bridge,   163-165. 
Ray  V.  Lynes,  651. 

V.  Pease,  889. 
,    V.  Pung,   432. 

V.  Simmons,  222. 

V.  Sweeney,   706. 

V.  Thurman,  1004. 


Rayman  v.  Gold,  338. 
Raymond  v.  Holborn,  12t;7. 

V.  Nash,  889. 

V.  Raymond.  900. 
Rayner  v.  Lee,  469. 

V.  Nugent.    699. 
Raynolds  v.  Ray,  1316. 
Raynor  v.  Raynor,  474. 

V.  Selmes,  1266. 
Rea  V.  Wilson,  1183. 
Read  v.  Cramer,  878. 

V.  Read,  1050. 

V.  Tuttle,  180. 

V.  Williams,  262,  263. 
Reade  v.  Reade,  219. 
Reading  v.  Althouse,  690. 

V.  Weston,  1179. 
Reagle  v.  Reagle,  416. 
Real  v.  Hollister.  902. 
Reams  v.  Spann,  336. 
Reaume  v.  Chambers,  48,  488. 
Reber  v.  Dowling,  301. 
Reckhow  v.  Schanck,  140,  141. 
Rector  v.  Waugh,  46,  376,  404. 
Red  River  Roller  Mills  v.  Wright, 

659. 
Reddick  v.  Gussman,  1169. 

v.  Long,  1016, 
Rede  v.  Farr,  179. 
Redfern  v.  Middleton.  295. 
Redfield  v.  Buck,  1111. 

v.  Parks,  1016. 
Redin  v.  Branhan,  220. 
Redlon  v.  Barker,  897. 
Redmond  v.   Excelsior  Sav.   Fund 

&  Loan  Ass'n,  1046. 
Redus  v.  Hayden.  490,   494. 
Redwine  v.  Brown,  915.  917. 
Reece  v.  Allen,  1274. 

V.  Miller,  591.  .594. 
Reed  v.  Bigelow,  1316. 

V.  Birmingham.  818. 

V.  Dickerman,  457. 

V.  Douthit,  930. 

V.  Harris,  957. 

V.  Hatch,  167. 

V.  Jones.   396. 

V.  Kennedy,  441. 

V.  Lewis,  92. 

V.  Lukens,    265. 

V.  Marble,  1266. 

V.  Northfield,  1033. 

V.  Pierce,  914. 

V.  Proprietors  of  Locl<s  &  C. 
886. 


1430 


TABLE   OF   CASES. 


[references  are  to  pages.] 


Reed  v.  Reed,  142-149.  154,  494,  561. 
561. 

V.  Reynolds,   789. 

V.  Shepley,  438. 

V.  Swan,  526. 

V.  Whitney,  433. 
Reeder  v.  Purdy.  156. 

V.  Sayre,  87,  88,  147. 
Reedy  v.  Camfield,  1016. 
Reel  V.  Elder,  446,  466. 
Rees  V.  Lowry,  856. 

V.  McDaniel,  1037. 
Reese  v.  Jared,  537. 

V.  Waters,  1159. 

V.  Zinn,   138. 
Reeves  v.  Brayton,  205. 

V.  Hayes,    1232. 

V.  Johnson,  1314. 

V.  Long,  293. 

V.  McComeskey,  856. 

V.  Sehern,  1318. 
Reformed    Dutch    Church    v.    Ten 

Eyck,  880. 
Reg.  V.  Cambrian  Ry.  Co.,  10,  11. 

V.  Chamberlain,  740. 

V.  Chorley,   737. 

V.  Inhabitants     of     St.     Paul, 
923. 

V.  Keyn,  591. 

V.  Northumberland,  518. 

V.  Pratt.  809. 

V.  Westbrook,    773. 
Regan  v.  Howe,  929,  935. 
Reid    V.    Board    of    Education    of 
Edina,  977. 

V.  Corrigan.   1282. 

V.  Gordon.    215. 

Y.  John  F.  Wiessner  Brewing 
Co.,  177. 

V.  Klein,   895. 

V.  McGowan,  1307.      . 

V.  Walbach,  300. 
Reidy  v.  Small,  609. 
Reiff  V.  Horst,  467,  468. 

V.  Reiff,   522. 

V.  Strite,  257,  258. 
Reilly  v.  Cullen,  1179. 

V.  Ring-land,  523,  525. 
Reily  v.  Bates,  476. 
Reimer  v.  Stuber,  1023,  1027.  1028. 
Reinboth  v.   Zerbe  Run   Imp.   Co., 

400. 
Reinhart  v.  Lantz,  70. 

V.  Miller,  919. 
Reise  v.  Enos.  719. 
Reitenbaugh  v.  Ludwick.  1202. 


Reitz  V.  Reitz,  233. 

Reitzel   v.   Eckard,   439,   440. 

Relph  V.  Gist,  922. 

Relyea  v.   Beaver,   532. 

Remington  v.  Higgins,  1283. 

Remington  Paper  Co.  v.  O'Dough- 

erty,  1239. 
Ren  V.  Driskell,  1130. 
Renals   v.    Cowlishaw,    766,    767. 
Rendleman    v.    Rendleman,    879. 
Rennyson's  Appeal,  706. 
Reno  Smelting,   Milling  &  Reduc- 
tion Works  V.  Stevenson,  662. 
Ronton  v.  Conley,  1298. 
Republic  of  Texas  v.  Thorn,  842. 
Rerick  v.  Kern,  673,  681. 
Respass  v.  Jones,  935. 
Reusens   v.   Lawson,   1010. 
Reuttler  v.  McCall,  317. 
Revalk  v.  Kraemer,  1266. 
Reyburn  v.  Wallace,  76. 
Reynard  v.  Spence,  440. 
Reynolds,  In  re,  300. 

V.  Collin,  71. 

V.  Cook,  1041. 

V.  Hanna,  562. 

V.  Harris,   1261. 

V.  Hennessy,  1273. 

V.  Plymouth  County,  845. 

V.  Reynolds,  465. 

V.  Shaver,    862. 

V.  Shuler,  803. 

V.  Vilas,    1116. 
Rex  V.  Hermitage,  748. 

V.  Pomfret,  773. 

V.  Yarborough.  1034. 
Rexroth  v.   Coon,   600. 
Reysen  v.  Roate,  598. 
Rhea  v.  Forsyth,  730. 

V.  Meridith,  511. 
Rhein  Bldg.  Ass'n  v.  Lea,  1320. 
Rhett  V.  Mason,  639. 
Rhine  v.  Robinson,  930. 
Rhoades  v.  Davis,  462. 

V.  Rhoads,  247. 
Rhoads  v.  Davidheiser,  665. 
Rhode   Island   Hospital   Trust   Co. 

V.  Harris,  284. 
Rhodes    v.    Brightwood,    972,    974, 
976. 

V.  Dunbar.    652. 

V.  McCormack,  691,  1125. 

V.  Mummery,  694. 

V.  Otis,    681. 

V.  Outcalt.    1098. 

V.  Robie,   487. 


TABLE  OF  CASES. 


1431 


[references  are  to  pages.] 


Rhodes  v.  Whitehead,  327,  656,  659, 

736. 
Ricard  v.  Williams,  1059. 
Rice  V.  Adams,  546. 

V.  Boston  &  W.  R.  Corp.,  164, 
183. 

V.  Brown,   22U. 

V.  Minnesota  &  N.  W.  R.  Co., 
835. 

V.  Peet,   858. 

V.  Rice,  1127,  1183,  1189,1288. 

V.  Roberts,  701,  702. 

V.  Ruddiman,  828. 

V.  Sanders,  1217. 
Rich  V.   Bolton,   138,   142,   145. 

V.  Gilkey,  957. 

V.  Keyser,  154. 

V.  Minneapolis.  809. 

V.  Rich,  464. 
Richard  v.  Bent,  916. 

V.  Hupp,   1026,   1028. 
Richards   v.   Attleborough   Branch 
R.  Co.,  735. 

V.  Chace.  505. 

V.  Leaming,    1285,    1290. 

V.  Miller,  262. 

V.  Nelms,    1126. 

V.  Northwest     Protestant 
Dutch  Church,  699. 

V.  Rose,  691.  712. 

V.  Torbert,   567,   570,   571. 
Richardson  v.  Bigelow,  731. 

V.  Chickering,  585,  587. 
.  V,  Clements,  704. 

V.  Copeland,   546. 

V.  Crooker,  633. 

V.  Day,  231. 

V.  De  Giverville,  413. 

V.  Gifford,  88. 

V.  Langridge.  138,  145. 

V.  Penicks,   291. 

V.  Richardson,     63,    278.    302, 
393. 

\.  Sharpe,  631. 

V.  Stodder,  213,  248,  415,  493. 

V.  Tobey,  758. 

V.  Vermont  Cent.  R.  Co..  668. 

V.  Wheatland,   283,  284. 

V.  Woodbury,  224. 

V.  Wyman,   453. 

V.  York,    578. 
Richart  v.  Scott,  1031. 
Richland    County   Mut.    Fire.    Ins. 

Co.  V.  Sampson,  1208. 
Richmond's  Appeal.  953. 
Richmond  v.  Aiken.    1255,  1256. 


Richmond  v.  Morford,  934. 

V.  Voorhees,   939. 
Richmond  Mfg.  Co.  v.  Atlantic  De 

Laine  Co.,  658. 
Richmond  &  D.  R.  Co.  v.  Durham 

&  N.  Ry.  Co.,  682. 
Richer  v.  Kelly,  681. 
Rickert  v.  Madeira,  1196. 
Ricketts  v.  East  &  West  India,  D. 
&  B.  J.  Ry.  Co.,  590. 

V.  Loftus,  618. 

V.  Louisville,  St.  L.  &  T.  Ry. 
Co.,  167. 
Rico  V.  Brandenstein,  1145. 
Riddell  v.  Gwinnell,  474,  477. 
Riddle  v.  Bowman,  1206. 

V.  Welden,  804. 

V.  Whitehill,  255,  387. 
Ridenoui-Baker     Grocery     Co.     v. 

Monroe,   1123. 
Rideout  v.   Knox,   651,   652. 
Ridgeley  v.  Cross,  628,  629. 

V.  Stillwell,  145,  148. 
Ridgeway   v.    Masting,   453. 

V.  Underwood,    260,    306. 
Rife  V.  Geyer,  211. 
Rifener  v.   Bowman,  880,  934. 
Rigby  V.  Bennett,  690,  713. 
Rigden  v.  Vallier,  375,  377. 
Rigg  V.   Cook,  1010. 
Riggan   v.   Green,   1153,   1155. 
Riggin  V.  Love,  871. 
Riggs  V.  Murray,  609. 

V.  Palmer,  li62. 

V.  Riggs,    950. 

V.  Riley,   998. 

V.  Sally,  63,  67,  69. 

V.  Steling,  1131. 
Right  V.  Beard,  139. 

V.  Bucknell,  1041. 

V.  Carter,   147. 

V.  Darby,    131.    144,    145,    153, 
155. 

V.  Pipes,  950. 
Righter  v.  Forrester,  1319. 
Rightsell  V.  Hall,  709. 
Rigler  v.  Cloud,  493,  497. 
Rigney  v.  Lovejoy,  1227. 
Riland   v.   Eckert,   1318. 
Riley  v.  Carter,  1153. 

V.  Griffin,  888. 

V.  Hammel,  976. 

V.  Lissner,   103. 

V.  Rice,  1221. 

V.  Riley,  412,   414. 

V.  Sherwood,   952. 


1432 


TABLE  OF  CASES. 


[references    ABE   TO   PAGES.] 


Rindge  v.  Baker,  702. 
Ring  V.  Burt,  511. 

V.  Walker,  874,  876. 
Ringgold  V.  Bryan,  1312. 
Riordan  v.  Britton,  1315. 
Ripley  v.  Cross,  122. 

V.  Harris,   1187. 

V.  Waterworth,  78,  262. 
Risher  v.  Adams,  291. 
liisien  V.  Brown,  681. 
Rising  V.  Stannard,  142,  150. 
Risk  V.  Hoffman,  1247,  1263. 
Rison  V.  Knapp,   1117. 
Ritchey  v.  Risley,  1303. 
Ritchie  v.  Griffiths,  1082,  108-6. 

V.  Kansas,   N.    &    D.    Ry.   Co., 
173,  181. 
Ritchmeyer  v.  Morss,  546,  553. 
Ritger  v.  Parker,  734.  j 

Ritter  v.-  Phillips,  1221. 
Rivas  V.   Solary,  592. 
Rivers  v.  Pripp,  334. 

V.  Rivers,  954. 
Rives  V.  Hickey,  739. 
Rivis  V.  Watson,  785. 
Rix  V.  Johnson,  892. 
Rixley  v.  Clark,  659. 
Rizer  v.  Perry,  229,  262,  956. 
Roach  V.  Bennett,  1309. 

V.  Heffernan,  182. 

V.  Karr,  1088. 

V.  Lawrence,    696. 
Roads  V.  Symmes,  843. 
Roan    V.    Holmes,    447,    448,    480, 

483. 
Roath  V.  Driscoll,   667,  1030. 

V.  Smith,  1264. 
Robards  v.  Rogers,  586. 
Robb  V.  Carnegie,  654. 
Robbins,  In  re,  896. 

V.  Borman,  820. 

V.  Eaton,  1152. 

V.  Larson,  1232,  1234. 

V.  Webb,  752,  756,  757. 
Robeno  v.  Marlatt,  629. 
Roberts'  Appeal,  225. 
Roberts  v.  Barker,  557. 

V.  Bourne,    1079,    1080.    1316, 
1317. 

V.  Chicago,    816. 

V.  Cooper,   1119. 

V.  Bldred,   387. 

V.  Fleming,    1199. 

V.  Greer,   507. 

V.  Haley,  232. 

V.  Lewis,   616. 


Roberts  v.  Littlefield,  1240. 

V.  JMoseley,  248. 

v.  Nelson,  448. 

V.  Richards,  689. 

V.  Robinson,  1132. 

V.  Sims,    773. 

V.  Stevens,   1141. 

V.  Thorn.  399. 

V.  Trujillo,    730. 

v.  Walker,    462. 

V.  Whiting.   499. 

V.  Wiggin,  1150. 
Robertson  v.  Gaines,  620,  624,  048. 

V.  Johnston,   1141. 

V.  Meadows,  577. 

V.  Mowell,  1248. 

V.  Norris,  411. 

V.  Paul,   1270. 

V.  Robertson,   1146. 

V.  Wilson,  306. 

V.  Youghiogeny     River     Coal 
Co.,    690. 
Robidoux  V.   Cassilegi,   390. 
Robie  V.  Flanders,  470. 
Robins  v.  Coryell,  945. 

V.  Kinzie,    468. 

V.  Quinliven,  61. 
Robinson's  Appeal,  382. 
Robinson's  Estate,  64. 
Robinson  v.  Allison,  624,  625,  1002. 

v.  Appleton,    267,    1291,    1204. 

V.  Baker,  507. 

v.  Bates,   450. 

V.  Berry,  118. 

V.  Black    Diamond    Coal    Co., 
658. 

V.  Brewster,  944. 

V.  Buck,  495. 

V.  Clapp,  532,  706,  708. 

V.  Codman,  437. 

V.  Cross,  1237. 

V.  Deering,  141,  784. 

V.  Fife,   1240. 

V.  Covers,  475,  482. 

V.  Harbour,  1294. 

V.  Holt,  1110. 

V.  Leflore,  230. 

V.  Lewis,  399. 

V.  McDonald,  386,   396. 

V.  Mauldin,    939. 

V.  Miller,  433,  440,  477. 

V.  Myers,  896. 

V.  Noel,   921. 

V.  Ostendorff,   622. 

V.  Palmer,  282,  284-286,  300. 

V.  Payne,  870. 


TABLE   OF   CASES. 


14:v 


[liEI-'EKEXCES    ARE   TO   PAGES.] 


Robinson  v.  Perry,  im;. 

V.  Queen,  417. 

V.  Randolph,  49. 

V.  Roberts,   402. 

V.  Sherwin,  402. 

V.  Wheeler,  573,  577. 

V.  Williams,  1184. 

V.  Wilson,    1130. 

V.  Wood,   341. 
Robinson  Bank  v.  Miller,  388. 
Robison  v.  Codman.  373,  437,  492. 

V.  Female      Orphan     Asylum, 
340. 
Roby  V.  Maisey,  1204. 
Roche  V.  Ullman,  758,  759. 

V.  Waters,   7<i. 
Rochester  Bank  v.  Gray,  921. 
Rochester  Distilling  Co.  v.  Rasey, 

1174. 
Rochford  v.  Hackman.  1140. 
Rochon  V.  Lecatt,  496,  498. 
Rock  V.  Haas,  1123. 
Rockhey  v.   Rockhey,   510. 
Rockingham    v.    Penrice,    783. 
Rockwell  V.   Baldwin.   892. 

V.  Blair  Sav.  Bank,   1218. 

V.  Hobby,    1285. 

V.  Morgan,  473. 

V.  Rockwell,  440. 
Roddy  V.  Elam,  1311. 

V.  Fitzgerald,   313,   ?14. 
Rodgers    v.    Bonner,    1312. 

V.  Cavanaugh,  1082. 

V.  Peckham,  1233. 
Rodman  v.  Sanders,  1249,  1290. 
Rodwell  V.   Phillips,   522. 
Roe  V.  Archbishop  of  York,  853. 

V.  Cato,    1095. 

V.  Grew,  313. 

V.  Griffiths,    342. 

V.  Jeffery.   64. 

V.  Jones,    307,    342. 

V.  Popham,  209. 

V.  Tranmer,  206,  320,  321,  862, 
863. 

V.  Ward,  149,  152. 
Roffey  V.  Henderson,  549. 
Rogan  V.   Walker.   187. 
Rogers  v.  Adams,  1132. 

V.  Benton.   1169,   1201,   1240. 

V.  Blackwell,    1155. 

V.  Boynton.  122. 

V.  Bracken.  938. 

V.  Brooks.   412. 

V.  Cawood,   421. 

V.  Cox.   680.   683. 


Rogers  v.  Eagle  Fire  Co.,  320,  321. 

V.  Elliott,   b-Z2. 

V.  Gilinger,  545,  546. 

V.  Grider,   381. 

V.  Herron,  1241. 

V.  Hurd,  1149. 

V.  Potter,   470. 

V.  Prattville  Mfg.  Co.,  541. 

V.  Ragland,    512. 

V.  Rogers,   228 

V.  Sebastian  County,   162. 

V.  Sinsheimer,    692,    712. 

V.  Walker,    1155. 

V.  Watson,    1270. 
Rohenheim   v.   Hartsock,    1099. 
Rolfe  V.  Chester,  1244. 

V.  Gregory,  234. 
Rolfe   &   Rumford   Asylum   v.    Le- 

febre,  351,  362. 
Roll  V.  Lea,  1307. 
Rollins  V.    Davis,   322. 

V.  Henry,   1098,   1099. 

V.  Riley,    159,    181,   860. 
Rolt    V.    Somerville,    570,    578. 
Remain  v.  Lewis,  845. 
Rome  V.  Omberg,  671. 
Rome  Gaslight  Co.  v.  ^Meyerhardt, 

739. 
Romer  v.  Conter,  926. 
Romney  v.  United  States,  252. 
Rood   V.    Hovey,   290. 

V.  .Johnson,    688. 
Rook  V.   Wilson,  944. 
Roome  V.  Phillips.  291,  334. 
Roose,   In  re,  526. 
Root  V.  Bryant,   1302. 
Roper  V.  Lloyd,   127,  793. 

V.  Roper,  60,  459. 
Rorer  v.  Roanoke  Nat.  Bank,  1077. 
Rorer  Iron  Co.  v.  Trout.  1088. 
Rose  V.  Bunn,  704. 

V.  Hawley,   173. 

V.  Watson,   1295. 
Roseboom  v.  Van  Vechteu,  67,  72. 
Rosehill  Cemetery  Co.  v.   Hopkin- 

son,    699. 
Roseman  v.  Miller,  1095. 
Rosenan  v.  ChiUless.  1011.  1(il2. 
Rosenberg  v.  .lett.  1124. 
Rosenfield  v.   Arroll,   105. 
Rosenthal   v.    Mayhugh,    4r.6. 

V.  Renick,   1058,   1059.    1321. 
Rosher,   In  re,   1136,    1137. 
Ross  V.  Adams,  292. 

V.  Blair,  1119. 


1434 


TABLE   OF   CASES. 


[references  are  to  pages.] 


Ross  V.  Boardman,  1257. 

V.  Butler,   652,   654. 

V.  Conway,    879. 

V.  Drake,  292,  337. 

V.  Dysart,    793. 

V.  Ferree,   586. 

V.  Goodwin,   999. 

V.  Mackeney,    1030. 

V.  Thompson,  1022. 

V.  Wilson,    440. 
Rosse's  Case,  71. 
Rosser  v.  Cheney,  1091. 
Rossiter  v.  Cosslt,  1241. 
Rotherham  v.  Green,  748. 
Rothwell  V.   Dewees,  231,  399. 

V.  Jamison,  64. 
Rottenberry  v.   Pipes,  507. 
Rotzler  v.   Ratzler,    1322. 
Rouche  V.  Williamson,  1158. 
Roundel  v.  Currer,  167. 
Roundtree  v.  Brantley,  1026. 
Roundwood    Colliery    Co.,    In    re, 

520. 
Rountree  x.  Denson,  404. 
Rous  V.  Jackson,  647. 
Rouse's     Estate     v.     Directors     of 

Poor,    502. 
Roush  V.  Miller,  425. 
Routledge  v.   Dorril,   647. 
Rowan  v.  Lytle.  154,  853. 
Rowbotham  v.  Wilson.  690,  701. 
Rowe  V.   Beckett,   1010. 

V.  Hamilton,  449. 

V.  Johnson,  482,  1483. 

V.  St.  Paul,  M.  &  M.  Ry.   Co., 
664. 
Rowell  V.   Daggett,   719,  720. 

V.  Jewett.  173,  174. 

y.  Klein.   525. 

V.  Mitchell,   1237. 
Rowland  v.  Rowland,  376. 

V.  Warren,   273. 

V.  Williams,    1001. 
Rowton  V.  Rowton,  433. 
Roy  V.  Monroe,  229.  262,  263. 
Royal   V.   Aultman   &   Taylor   Co., 

173. 
Royal  Fishery  of  the  Banne,  594. 
Royal  Ins.  Co.  v.  Stinson,  1207. 

1208. 
Royce  v.  Guggenheim,  127-130,  79-' 
Royston  v.  Royston,  411,  467. 
Rubeck  v.  Gardner.  1159. 
Rubottom   V.    Morrow,    778. 
Rnch    V.    Rock    Island,    164.    ISO, 
181.  184. 


Rucker  v.  Lambdin,  949. 
Ruckman    v.    Alwood,    1181. 

V.  Astor,   1215. 

V.  Cutwater,   555. 

V.  Ruckman,   927,   929. 
Rud  V.  Tucker,  394. 
Rudd   V.   Peters,  416. 

V.  Williams,   657. 
Ruddiman  v.  Taylor,  976. 
Rudy  V.  Austin,  1111,  1112. 
Rue  V.  Dole,  1181. 
Ruffier  V.   Womack    1181. 
Ruffner  v.  Ridley,  879. 
Ruggles,  V.  Barton,  1226,  1230. 

V.  Clare,  163. 

V.  Lawson,    932. 

V.  Tyson,   632. 
Ruloff  V.  Hayen,  1185. 
Rumsey  v.  New  Yorlv  &  N.  E.  R. 

Co.,    597. 
Runnels  v.  Runnels,   510. 

V.  Webber,    906. 
Runyan  v.  Mersevlan,  1227. 
Runyon  v.  Smith,   852. 
Rupert  V.  Penner,   865. 
Rushin  v.    Shields,   929-931. 
Russ  V.  Mebins,  877. 

V.  Perry,   466,   469,  906. 
Russel  V.  Russel,  1284,  1285. 

V.  Smithies,    1214. 
Russell,  Ex  parte,  1111. 
Russell's  Appeal,  1078,  1283. 
Russell    V.    Allen,    249,    251.    362, 
363. 

V.  Pabyan,   149.  150,   154,  797. 

V.  Grant,   1302. 

V.  Jackson,  722. 

V.  Marks.    403. 

V.  Merchants'    Bank    of    Lake 
City,  580. 

V.  Pistor,   1249,   1252. 

V.  Richards,   543. 

V.  Russell,   408,   619. 

V.  Southard,  1182,  1183,  1210. 

V.  Sweezey,    1087. 

V.  Temple,  13. 

V.  Umphlet.  451. 

V.  Watts,  651,  713. 
Russum  V.  Wauser,  1204. 
Rust  V.  Law,  588,  694-696. 

V.  Rust.    1009. 
Rutherford  v.  Clark.  634. 
Rutland  Marble  Co.  v.  Ripley,  745. 
Rutledge  v.  Montgomery.  930. 
Rutz  V.  Kehn.  1048. 
Ryan  v.  Adamson.  1209. 


TABLE   OF   CASES. 


U?,5 


[references  are  to  pages.] 


Ryan  v.  Duncan,  (JOG. 

V.  Growney,   1148. 

V.  Mahan,  643. 

V.  Monaghan.  284,  292,  3U0. 

V.  Wilson,    103. 
Rychlicki  v.  St.  Louis,  665. 
Ryckman  v.  Gillis,  690. 
Ryder  v.  Cobb.  1302. 

V.  Mansell,  124. 
Ryer  v.  Gass,  1251. 
Ryerson  v.  Quackenbush,  780,  785, 

796. 
Rylands  v.  Fletcher,  665,  666. 


S. 


Sabine  v.  Johnson,  722. 

Saeheverell  v.  Froggatt,  778. 

Sackett  v.  Sackett,  575. 

Saddler  v.  Lee,  668. 

Sadler  v.  Pratt,  634,   635. 

Safe  Deposit  Co.  of  Baltimore   v. 

Meyers,  617. 
Safe  Deposit   &   Trust   Co.   v.    Sii- 

tro,  621. 
Safford  v.  Rantoul,   224. 
V.  Safford,  439. 
V.  Stubbs,   1011. 
Sager  v.  Galloway,  335,  577. 

V.  Tupper,    1237,   1241. 
St.    Andrew's    Lutheran    Church's 

Appeal,  763. 
St.  Bede  College  v.  Weber,  583. 
St.   Clair  v.   Morris,   451. 
St.    Clair    Countv    v.    Lovingston, 

892. 
St.    Helen's    Smelting   Co.    v.    Tip- 
ping, 652-654. 
V.  Dann,  57,  65,  289,  357. 
St.  Louis  V.  Kaime.  93. 

V.  Laclede  Gas  Light  Co..  393. 
V.  Rutz,    1036,    1038. 
V.  St.    Louis    University,    976. 
V.  Toney.  823. 
St.    Louis    Bridge    Co.    v.    Curtis, 

897. 
St.    Louis    County   Court   v.    uris- 

wold,  821. 
St.   Louis,    I.   M.   &   S.   Ry.   Co.   v. 
O'Baugh,   751,  756. 
V.  Ramsey.    595,    1034. 
St.  Louis  Nat.  Stock  Yards  Co.  v. 

Wiggins  Ferry  Co..  681,  682. 
St.  Louis  Public  Schools  v.  Boat- 
itien's  Ins.  &  Trust  Co.,  781.  796. 


St.  Louis  Smelting  &  Refining  Co. 

V.  Kemp,  845. 
St.   Mary's   Church    v.    Miles,    782, 

793. 
St.  Paul  V.   Chicago,   M.  &  St.   P. 

Ry.  Co.,  1000. 
St.     Paul's     Church     v.     Attorney 

General,  364. 
St.   Paul's  Church   in   Syracuse  v. 

Ford,  698. 
St.   Paul  &  Pac.  R.  Co.  v.   Schur- 

meir,    595,    885. 
St.  Paul  &  S.  C.  R.  Co.  V.  Winona 

&  St.   P.  R.  Co.,  835. 
Sale  V.  Crutchfield,  64,  65. 
Salem  Capital  Flour  Mills  Co.   v. 
Stayton   Water  Ditch   &   Canal 
Co.,    686. 
Salinas  v.  Ellis,  1237.  1238. 
Salisbury  v.  Denton,  639. 

V.  Shirley,    117,   781,   798. 
Salisbury    Sav.    Soc.    v.    Cutting, 

1081. 
Sally  V.  Gunter,  882. 
Salmon  v.  Hoffman,  1287. 

V.  Matthews,  775. 
Salop  V.  Crompton,  573,  574. 
Saloy  V.   Block,  1322. 
V.  Dragon,    1322. 
Salter  v.  Boteler,  78. 
V.  Jonas,   894. 
V.  Salter,  413. 
Saltmarsh  v.  Smith,  470. 
Saltonstall  v.  Little,  530. 
Salvin  v.  North  Brancepeth   Coal 

Co.,   654. 
Sambach  v.  Dalston,  217. 
Samme's  Case,  214,  872. 
Sammis  v.  Sammis,  334. 
Sampley  v.  Watson.  416. 
Sampson    v.    Camperdown    Cotton 
Mills,  552. 
V.  Graham,  544. 
V.  Grogan,  573. 
V.  Hoddinott,  657,  673.  1030. 
Samson  v.  Rose,  525. 
Samuels  v.  Borrowscale,  1008. 
San  Antonio  Rapid  Transit  St.  R. 

Co.  V.  Limburger,  815. 
San  Francisco  v.  Calderwood,  976, 
978. 
V.  Fulde,   1002. 
V.  Lawton.  861.   1262.  1267. 
San    Francisco    Board    of    Educa- 
tion V.  Martin,  1006. 


1436 


TABLE    OF   CASES 


Lkeferexces  are  to  pages. J 


San  Francisco  &  O.  R.  Co.  v.  Oak- 
land,   869. 
San  Leandro  v.  Le  Breton,  974. 
Sanborn  v.  Adair.  1081. 

V.  Hoyt,   873. 

V.  Mueller,  886. 

V.  Rice,   765,  769. 

V.  Woodman.    187. 
Sander  v.  Morningstar,  70. 
Sanderlin  v.  Baxter,  689.  7nr,.  711 7, 

710,  730. 
Sanders  v.  Cassaday,  1226. 

V.  Godding,    889. 

V.  Hartzog,  860. 

V.  McAffee,   1292. 

V.  McDonald.    1284. 

V.  McMillian,  472,  476. 

V.  Martin,  692,  726,  727. 

V.  Partridge,   107,   119. 

V.  Ransom,  886. 

V.  Read,   1211,   1212. 

V.  Wilson,  1202. 
Sanderson  v.  Haverstick,  809. 

V.  Price,    1205. 
Sandford  v.  Blake,  289. 

V.  Clark,   146. 

V.  Covington,    975. 

V.  McLean,   448,   449,   1149. 
Sandifer  v.  Grantham,   622. 
Sandon  v.  Hooper,  1214. 
Sands  v.  Church,  1221. 

V.  Lynham.   1158,   1159. 

V.  Sands,    879. 
Sands    Ale    Brewing    Co.,    In    re, 

1208. 
Saner  v.   Bilton,   568,  572. 
Sanford  v.   Hill,  1223. 

V.  Kane,   1270. 

V.  Lackland,  1138. 

V.  Sanford,   845. 
Sanger  v.  Bancroft,  1229. 
Sanitary  Dist.  of  Chicago,  1012. 
Sankey  v.  Hawley,  1179. 
Sanscrainte  v.  Torongo,  1011. 
Santley  v.  Wilde,  1192. 
Sapp  V.  Wightman,  1308. 
Sappington  v.  Oeschli,  1313,  1319. 
Sargent  v.  Baldwin.  246. 

V.  Ballard,   1022,  1028. 

V.  Courrier,  533. 

V.  Howe,    1228,    1274. 

V.  Hubbard.  730.  1091. 

V.  Roberts,   463. 

V.  Wilson,   505. 
Sarles  v.  Sarles,  567. 
Saul  V.  His  Creditors.  384. 


Saul  V.  Pattinson.  643. 
Saunders'  Case,  561. 
Saunders  v.  Blythe,  470. 

V.  Dunn,   1185. 

V.  Frost,  1247. 

V.  Hackney.   919. 

V.  New  York  Cent.  &  Hudson 
River  R.   Co.,   Ifi34.   1037. 

V.  Saunders.  622. 

V.  Webber,    619. 
Saundeys  v.  Oliff,  748. 
Saup  V.  Morgan,  13. 
Savage  v.  Burnham,  258. 

V.  Crill,    450. 

V.  Knight,  1112. 

V.  Lee,  282,  320,  322. 

V.  Mason,  758,  760. 

V.  Savage,  406.  1146. 
Savannah,  F.  &  W.  Ry.  Co.  v.  Gei- 

ger,  588. 
Savignac  v.  Garrison,  823. 
Savings  Bank  v.  Getchell,  105. 
Savory,  In  re,  945. 
Sawtelle  v.  Weymouth.  1114. 
Sawyer  v.  Adams,  1083. 

V.  Kendall,   1001,    1002. 

V.  Little,  906. 

v;  McGillicuddy.   105. 

V.  Skowhegan,    219. 

V.  Twiss,   556-558. 

V.  Wilson,   685. 
Sawyers  v.   Sawyers,  1318. 
Saxton  v.   Bacon,   695. 
Say  V.  Stoddard,  142. 
Say  &  Seal  v.  Jones,  312. 
Sayer  v.    Sayer,   635. 
Sayers'  Appeal,  261. 
Sayers  v.  College.  769. 

V.  Hoskinson,    426,    562,    564, 
565. 
Sayre  v.  Townsends,  232. 
Scales  V.  Cockrill,  1002. 
Scammon  v.  Campbell,  476. 
Scanlon  v.  Scanlon.  451. 
■       V.  Cobb.    1155. 

V.  Wright,    1152.    1158. 
Scantlin  v.  Allison.  912. 
Scarborough  v.  Watkins.  1146. 
Scarlett  v.  Gorham.  1099. 
Scattergood  v.  Edge.  346,  350. 
Schackletfs    Appeal.    1315. 

V.  Cawood,   421. 
Schaeffer  v.  Chambers,  1202. 
Schafer  v.  Hauser,  1013. 
Schaffer  v.  Lauretta.  248. 
Schardt  v.  Blaul.  730. 


TABLE   OF   CASES. 


1437 


[REFEREXCKS    ABE   TO   PAGES.] 


Scliearff  v.   Dodge.  1236. 

Scheetz  v.  Fitz water,  195. 

Scheible  v.  Bacho,  1191. 

Scheldt  V.  Belz,  897. 

Schell  V.  Stein.   1083. 

Schenck  v.  Ellingwood,  G3lJ. 
V.  Kelley.  1198. 

Schermerhorn  v.  Negus,  1136. 

Schieffelin  v.  Carpenter,  854,   855. 

Schiffer   v.   Feagin,    1185. 

Schile  V.  Brockhaluis,  1032. 

Schilling  v.  Carter,   1322. 
V.  Lintner.    1260. 

Schintz  V.  McManamy,  868. 

Schlessinger   v.    Mallard,   229. 

Schley  v.  McCeney,  626. 

Schlicher  v.  Keeler,  935. 

Schmidt  v.  Schmidt,  852. 

Schmitheimer,  1148. 

Schmucker    v.     Sibert,     1217-1219, 
1256. 

Schnebly  v.  Ragan,  1291. 

V.     Schnebly,     427,     472.     473, 
478. 

Schnee  v.   Schnee,   845. 

Schneider  v.  Bray,  1133. 

Schnitzius  v.  Bailey,  1031. 

Schock  V.  Falls  City,   998. 

Schofield  V.  Iowa  Homestead  Co., 
916. 
V.  Walker,   952. 

Scholey  v.  De  Mattos,  12(6. 

SchoU  V.  Olmstead,  6*1. 

School  Dist.  in  Winthrop  v.   Ben- 
son,  998. 

School    Dist.   No.    8    of   Thompson 
V.  Lynch.  1008. 

Schooley  v.  Romain,   1254. 

Schoonmaker   v.    Taylor,    1254. 

Schopp  V.  St.  Louis,  813. 

Schraeder  Min.  &  Mfg.  Co.  v.  Pack- 
er, 584. 

Schreiber  v.  Carey,  1201. 

Sehroeder   v.    Galland,    1299. 
V.  Gurney,  1313. 
V.  Onekama,  1033. 
V.  Tomlinson.    182. 

Schulenberg     v.     Harriman.     164, 
180,    835. 

Schull  V.  Murray,  415. 

Schulser  v.  Ames,  856. 

Schulting  V.  Schulting,  571 

Schiiltz's   Appeal,   225. 

Schultz  V.  Bower,  669. 
V.  Byers,    671. 

Schultze  V.  Houfes,  1094. 


Schumpert  v.   Dillard,   1094,   1184. 
Schurtz  V.  Colviu,  933. 
Schuttloffel  V.  Collins,  1133. 
Schuyler  v.  Hanna,  2S7,  288. 

V.  Smith,  152,  loo,  156. 
Schuylkill    &    D.    Improvement    & 
Railroad  Co.  v.  McCreary,  lOll. 
Schwallback  v.  Chicago,  ivi.  &  St. 

P.  Ry.  Co..  1010. 
Schweiss  v.  Woodruff,  1086. 
Schwerdtle  v.  Placer  County,  974, 

1033. 
Schwoerer     v.     Boylston     Market 

Ass'n,  729. 
Scofield  V.  Olcott.  334. 
Scott  V.  Beecher,  1246. 

V.  Bryan,   627-629. 

V.  Burton,  755. 

V.  Croasdale,  446. 

V.  Fink,  968. 

V.  Grover,    694. 

V.  Hancock,  435. 

V.  Harwood.   335. 

V.  Henry.   1179,  1241. 

V.  Lane,  446. 

V.  Lunt,  782. 

V.  McMillan,   759. 

V.  Purcell,  1114. 

V.  Scott,  474. 

V.  Stipe,    186. 

V.  Whipple,  920. 
Scovill   V.   McMiahon.   162-1 64.   I'^^l. 

168. 
Scoville  V.  Hilliard,  406. 
Scranton  v.  Phillips,  690. 

V.  Stewart,   1150. 
Scripture  v.   .Johnson,  1244. 
Scriver  v.  Smith,  678,  905. 
Scroggin  v.  National  Lumber  Co., 

1300. 
Scrope's  Case,  628. 
Scrugham  v.  Wood.  929. 
Scudamore  v.   Scudamore,  256 
Scudder  v.  City  of  Detroit,  819. 
Scully  V.  Murray.  87. 
Sculthorp  V.   Burgess,  227. 
Seabrook  v.  Moyer,  786. 
Seager  v.   Burns,   265. 
Seagram  v.  Knight,  578. 
Seaman  v.  Gibbs,   247. 
Seamans  v.   Carter,  1133. 
Searcy  v.   Hunter,  1148.   1152. 
Searle  v.  Cooke.  794. 

V.  Sawyer.    1211-1213. 
Sears  v.  Chapman,  253. 

V.  Choate,  246,  1138. 


1438 


TABLE   OF   CASES. 


[eeferences  are  to  pages.] 


Sears  v.  Dillingham,  948. 

V.  Hanks,    1127. 

V.  Hayt,    1023. 

V.  KinK.   886. 

V.  Putnam,  361. 

V.  Russell,   361. 
Seaton  v.  Hamilton,  1308. 

V.  Jamison,  481. 
Seaver  v.  Durant,  1202. 

V.  Fitzgerald,   353,   360. 
Seavey  v.  Cloudman,  143. 
Sebald  v.  Mulholland,  759. 
Secombe  v.  Borland,  1125. 
Second      Reformed      Presbyterian 

Church  V.  Disbrow,  49. 
Second    Unitarian    Soc.    v.    Wood- 
bury,  224. 
Secor  V.  Pestana,  131. 
Security    Bank    of    Minnesota    v. 

Holmes,  916. 
Security  Co.   v.  Bryant,  459. 

V.  Snow,    621. 
Security  Co.  of  Hartford  v.  Eyer, 

1276. 
Sedgwick  v.  Hollenbach,  903,  hvo 
Seek  V.  Haynes,  510. 
Seekright  v.  Moore,  425. 
Seeley  v.  Jago,  259. 

V.  Peters,  588. 
Seeman  v.  Bieman,  1299. 
Seevers  v.  Delashmutt,  1174,  1313. 

V.  Gabel,   101. 
Seguin  v.  Ireland,  979,  980. 
Seibert  v.  Levan,  711. 
Seidensparger  v.   Spear,   681,    684. 
Seiders  v.  Giles  406. 
Seitz  V.    Seitz,    375. 
Selb  V.  Montague,  435,  436. 
Selby  V.  Greaves,  554,  774. 

V.  Nettlefold,   721. 
Selden  v.  Keen,   171. 
Sellers  v.  Burk,  1306. 

V.  Crossan,   1010. 

V.  Union  Lumbering  Co.,  10. 
Sellman  v.  Bowen,  481. 
Sellwood  V.  Gray.  1241. 
Selman  v.  Robertson,  280,  325. 
Semple  v.  Burd,   1313. 

V.  Cook,    1017. 
Semmes  v.  Semmes,  958,  960. 
Seneca     Nation     of      Indians     v. 

Knight,   595. 
Sennett  v.  Bncher,  91. 
Sergeson  v.  Sealey,  636. 
Serrano  v.  Rawson,  886. 
Serrin  v.  Grefe,  598. 


Serry  v.   Curry,    484. 

Sessions  v.  Reynolds,  852. 

Severs  v.  Dodson,  1111. 

Sewall  V.  Wilmer,  631. 

Seward  v.  Hicks,  844. 

Sewell  v.  Holland,  394. 

Sexton    V.    Chicago    Storage    Co., 

114. 
Seymour  v.  Freer,  1009. 

V.  McKinstry,   1287,   1289. 

V.  Mackay,   1215. 

V.  Ricketts,  406. 
Seymour,    Sabin    &    Co.    v.    Carli, 

1014. 
Shaber  v.  St.  Paul  Water  Co..   . 
Shackelford  v.  Hall,  170. 
Shackelton    v.    Sebree,    320,    322, 

1153. 
Shadden  v.  Hembree,  340. 
Shadwell  v.   Hutchinson,   731. 
Shaeffer  v.   Chambers,    1203. 
Shafer  v.  Smith,  730. 

V.  Wilson,    671. 
Shaffer  v.   Richardson.   465. 
Shaffner   v.    Shaffner,   235. 
Shailer  v.  Bumstead,  953. 
Shall  V.  Bisoe,   1287. 
Shalter  &  Ebling's  Appeal,  631. 
Shane  v.  McNeill,  462. 
Shank  v.   Dewitt.   638. 
Shanks  v.  Klein,  387. 

V.  Lancaster,   938. 
Shannon  v.  Bradstreet,  636. 
Shapleigh  v.  Pilsbury,  319. 
Sharington   v.   Strotton,   202. 
Sharman  v.   Jackson,   283. 
Sharon  v.   Davidson,  402. 

v.  Tucker,    998. 
Sharon  Iron  Co.  v.  Erie,  176,  177. 
Sharp's   Estate,    In  re,    512. 
fcjharp  V.  Bailey.  504. 

v.  Cheatham.     754.     758.     759, 
764. 

V.  Johnson.  999. 

V.  Mynatt,  1033. 

V.  Robertson,   1119. 

V.  Ropes,  767,  769. 

V.  Shea,    1097. 
Sharpe  v.  Orme,  880. 
Shattuck  V.  Gragg,  427. 

v.  Hastings,   160. 

V.  Lamb.   911. 

V.  Lovejoy,    106. 
Shaver  v.  Alterton,  1113. 
Shaufelter  v.    Horner,   182. 
Shavely  v.  Pickle,  1203. 


TABLE   OF    CASES. 


14  .VJ 


[UEFEKEXCES    ARE   TO    PAGES.] 


Shaw"s  Appeal,   387.  i 

Shaw  V.  Allegheny,  1320. 

V.  Beebe,    1048.  I 

V.  Beveridge,    697,    730.  j 

V.  Bowman,  524.  j 

V.  Boyd,  461. 

V.  Carpenter,   1192. 

V.  Eckley,  282,  287.  i 

V.  Ford,  333. 

V.  Foster,   264.  [ 

V.  Gilmore,  1174. 

V.  Hearsey,    382. 

V.  Heisey,   1262. 

V.  Hersey,    1257. 

V.  Hill,  385. 

V.  Hoffman,    191. 

V.  Kirby,  1125. 

V.  Loud,   867. 

V.  Norfolk     County     R.     Co., 
1274. 

V.  Oswego  Iron  Co.,  827. 

V.  Partridge,  109. 

V.  Robinson,  312. 

V.  Russ,    449. 

V.  Tracy,  1116. 

V.  Walbridge,  1215. 
Shceidt  v.  Crecilius,  633. 
Sheaffer  v.  Sheaffer,  180. 
Shearer  v.   Shearer,   255,   387. 
Sheehy  v.  Fulton,  1301. 
Sheer  v.   Fisher,  572. 
Sheets  v.  Selden,  116,  187. 
Shaffey  v.  Gardiner,  911. 
Sheffield  v.   Orrery,   291. 
Sheffield  &  Tuscumbia  St.  Ry.  Co. 

V.  Moore,  821. 
Shelby   v.    Chicago   &   E.   R.    Co, 

897 
Sheldon  v.  Bliss,  463. 

V.  Hoffnagle,    425. 
Shell  V.  Duncan,  1129. 

V.  Kemmerer,  651. 
bnellar  v.  Shivers,  552. 
Shellenberger  v.  Ransom,  1161. 
Shelley's  Case,   487,  491. 
Shelley  v.    Edlin,   212. 
Shellhouse  v.  State,  1033. 
Shelton's  Case,  928. 
Shelton  v.  CaiTol,  472. 

V.  Homer,    606,    613.    619,    626. 
V.  Merrill,    1299. 
V.  Shelton,    209. 
Shenk  v.  Shenk,  1280. 
Sheorn  v.  Robinson,  1088. 
Shepard  v.  Jones,  1207. 
V.  Richards.    393. 


Shepard  v.  Rirhardson.  1275. 

V.  Rinks,    4U3. 

V.  Shepard,    1086,    1146. 

V.  Spaulding,   854. 
Shepardson  v.  Perkins,  690. 
Sheperd  v.  Adams,   1223. 
Shepherd   v.   Burkhalter,   1083. 

V.  Cassiday,  1134. 

V.  Howard,  449. 

V.  Jernigan,  395,  397. 

V.  McCalmont    Oil   Co.,    519. 

V.  May,  1217,  1219. 
Sheppard   v.   Manhattan   Ry.    Co., 
470. 

V.  Sheppard,  561. 

V.  Thomas,   1112. 

V.  Warden,  452. 
Shepperson  v.  Shepperson,  1146. 
Sheridan  v.  Andrews,  1100. 
Sherin  v.  Brackett,  1001,  1002. 
Sherlock  v.  Kansas  City  Belt  Ry. 
Co.,  815. 

V.  Thayer,  779. 
Sherman  v.  Ballon,  4ul. 

V.  Buick,  844. 

V.  Champlain    Transportation 
Co.,  134. 

V.  Kane,  585,  586,  998. 

V.  Newton,  457. 

V.  Willett,  525,  527. 

V.  Williams,  97. 
Sherred  v.  Cisco.  691,  693,  733. 
Sherrill  v.  Connor.  568,  570. 
Sherwood  v.   Moelle,  1093. 
Shew  V.  Call,  123.  1272. 
Shields  v.  Batts.  471. 

V.  Hunt,  481. 

V.  Lozear,     1196.     1199.     li'l'.". 
1236-1239. 

V.  Smith,  622. 

V.  Titus,  686. 

V.  Whitaker,  235. 
Shiell  V.  Sloan.  448. 
Shillaber  v.  Robinson,  1275. 
Shillock  V.  Gilbert,  919. 
Shine  v.  Dillon,  799. 
Shinn  v.  Shinn,  381,  383,  1263. 

V.  Taylor,   1310. 
Shipley  v.  Bunn,  1150. 
Shipman  v.  Beers,  651. 

V.  Mitchell,  153. 
Shippen  v.  Clapp,  606. 
Shirack  v.  Shirack,  509. 
Shires  v.  Glascock,  950. 
Shirey  v.  Postlethwaite.  51. 


1440 


TABLE   OF   CASES. 


[iJEFERENCES    ARE   TO   PAGES.] 


Shirk  Y.  Thomas,  1U77,  1098,  1312, 

1317. 
Shirley  v.  Ayres,  932. 

V.  Burch,  1176. 

V.  Crabb,    732. 
Shirras  v.  Caig,  1184-1186. 
Shirtz  V.  Shirtz,  483. 
Shitz  V.  Dieffenbach,  12So. 
Shively  v.   Bowlby,   591,   592,   597. 

826,  839,  840. 
Sliivers  v.  Sliivers,  729. 
Shoemaker  v.  Grant  County,   226. 

V.  Harvey,  1316. 

V.  Simpson,  537. 

V.  Walker,  433. 
Shoenberger  v.  Lyon,  872. 
Shores  v.  Carley,  494. 
Short  V.  Devine.  729. 

V.  McGruder,    1128. 
Shortall  v.  Hinckley.  498-500.  1119. 
Snorthill  v.  Ferguson,  912. 
Shortridge  v.  Lamplugh.  209. 
Shoup  V.  De  Long,  317. 
Shouse  V.  Krusor,  773. 
Shove  V.  Pincke,  869. 
Showers  v.  Robinson,  5n4,  508,  509, 

511. 
Shreve  v.  Shreve,  314. 

v.  Voorhees,  1029. 
Shrew  v.  Jones,  1305. 
Shrewsbury's  (Countess  of)  Case, 

572,  574. 
Shri'eve  v.  Stokes,  671. 
Shriver  v.  Stephens,  695. 
Shroder  v.  Brenneman,  719,  730. 
Shrunk   v.    Schuylkill    Navigation 

Co.,  602. 
Shuetze  v.  Bailey,  937. 
Shufflin  v.  House,  135. 
Shury  v.  Piggot,  673. 
Shute  v.  Grimes,  1197. 
Shuttleworth   v.  Le  Fleming,   742. 
Shuver  v.  Klinkenberg,  131. 
Sibley  v.  Holden,  895. 
Siddall's  Estate,   353. 
Sidders  v.  Riley,  908. 
Siddons  v.  Short,  713. 
Sidenberg  v.  Ely.  1206. 
i-.aney  v.  Sidney,  498. 
Sidwell  V.  Wheaton,  1293. 
Sieber  v.  Blanc,  103. 
Siebrecht  v.  Hogan,  1299. 
Siedler  v.  Syms,  355. 
Sigmund  v.  Howard  Bank,  97. 
Sillers  v.  Lester,  1173. 
Silliman  v.  Gammage,  1251. 


Silliman  v.  Whitaker,  61. 
Silloway  v.  Bi'own,  1123. 
Silsby  V.  Bullock,  495,  497. 

V.  Trotter,   745,   746. 
Silva  V.  Garcia,  565. 

V.  Hopkinson,  315. 
Silverman  v.  Bullock,  1231. 
Silverwood  v.  Latrobe,  699. 
Silvester  v.  Wilson.  312. 
Silvey  v.  McCool,  893. 
Simar  v.  Canaday,  468. 
Simmins  v.  Shirley,  1211. 
Simmons  v.   Ballard,  1240. 

V.  Brown,    1168. 

V.  Cornell,  818,  976. 

V.  Ingram,  1112. 

V.  Johnson,  886. 

V.  Leonard,  947. 

V.  Norton,  560,  566. 

V.  Pratt,  867. 

V.  Stum,  1081. 

V.  Winters,  655,  662. 
Simmons    Creek    Coal    Co.    v.    Do- 
ran.  1089,  1090. 
Simms  v.  Buist,  314,  317. 
Simon  v.  Gouge,  1119. 
Simonds  v.  Simonds,  261. 
Simonton  v.  Gray,  475. 

V.  Houston,  457,  482. 
Simpkins  v.  Rogers,  525. 
Simplot   V.    Chicago,    M.    &   St.    P. 

Ry.  Co.,  1006. 
Simpson  v.  Ammons,  373. 

V.  Applegate,   143. 

V.  Biffle,  1133. 

V.  Boston  &  M.  R.  R.,  875,  876. 

V.  Downing,  1018. 

V.  Ferguson,  1201. 

V.  Hartopp.  803. 

V.  McAllister,   1292. 

V.  Mundee,  1287. 

V.  Pearson,  381. 

V.  Poe,   507. 

V.  Savage,  93,  674. 

V.  Walker,  yo6. 

V.  Welcome,   250. 
Sims  V.  Bardoner,  1150,  1151. 

V.  Davis,   1028. 

V.  De  Graffenreid,  1119. 

v.  Everhardt.  1148,  1150,  1151. 

V.  Field,  1271. 

V.  Jones,  534. 

V.  Smith,  1148. 
Sinclair  v.  Armitage,  1172. 

V.  Learned,  1241. 


TABLE  OF  CASES. 


1441 


[BEFEEENCES   ABE   TO   PAGES.] 


Singer    Mfg.    Co.    v.    Lamb,    1149, 

1150. 
Singleton  v.  Scott,  619. 
Sinnett  v.  Herbert,  363. 
Sinton  v.  Boyd,  337. 
Sioux    City    Terminal    R.    Co.    v. 

Trust  Co.,  345. 
Sioux    City    &    Iowa   Falls    Town 
Lot  &  Land  Co.  v.  Griffey,  835. 
Sioux  City  &  St.  P.  R.  Co.  v.  Sin- 
ger, 172,   181,  186,  109L 
Sip  V.  Lawback,  466. 
Sipley  V.  Wass,  1309. 
Sisson  V.  Hibbard,  542. 
Sisters  of  Charity  of  St.  Vincent 

de  Paul  V.  Kelly,  946. 
Siter's  Appeal,  265. 
Siter  V.   McClanachan,   1243,  1244. 
Sites  V.  Eldredge,  643. 
Skaggs  V.  Elkus,  153. 
Skally  V.  Shute,  127,  128. 
Skey  V.  Barnes,  338. 
Skinner    v.    American    Bible    Soc, 
969. 

V.  Cox,  1179. 

V.  Hettrick,  601. 

V.  Newberry,  965. 

V.  Reynick,  1221. 

V.  Shepard,  163,  767. 

V.  Wilder.  515,  532. 
Skipwith  V.  Cabell,  961,  962. 

V.  Cunningham,   935,   1110. 

V.  Martin,   183. 
Skomeld  V.  Skolfield,  474. 
Skull  V.  Glenisfer,  719. 
Slack  V.  Bird,  337. 
Slade  V.  Patten,  345,  354. 
Slater  v.  Nason,  1159. 

V.  Rawson,  904. 
Slatter  v.  Meek,  481. 
Slaughter  v.  Cunningham,  1147. 
Sleeper  v.  Laconia,  887,  891,  892. 
Slegel  V.  Lauer,  194,  195. 
Slevin  v.  Brown,  213. 
Slicer  v.  Pittsburgh  Bank,  1240. 
Sloan  V.  Biemiller,  825. 

V.  Campbell,  1290. 

V.  Lawrence  Furnace  Co.,  517, 
873,  875. 

V.  Whitman,  480. 
Slocum  V.  Seymour.  530. 
Sloniger  v.  Sloniger,  470,  508,  509. 
Slowey  V.   McMurray,   1182. 
Small  V.  Clifford.  389. 

V.  Small,  284. 

V.  Wicks,  509. 

Real  Prop. — 91. 


Smalley  v.  Isaacson,  75. 
Smart  v.  Sandars,  614. 

V.  Whaley,  420. 
Smaw  V.  Young,  283. 
Smiley  v.  Wright,  466. 
Smith,  In  re,  260. 
Smith's  Appeal,  289,  290,  352,  361, 

430. 
Smith's  Estate,  222. 
Smith's  Will,  In  re,  953. 
Smith  V.  Addleman,  476. 

V.  Agawam  Canal  Co.,  660. 

V.  Alt,  153. 

V.  Andrews,  825. 

V.  Ashton,  636. 

V.  Austin,  1241. 

V.  Barham,  526. 

V.  Barrie,  172. 

V.  Bell,  152. 

V.  Benson,  395. 

V.  Blanpied,  709. 

V.  Block,   284,  286,  308. 

V.  Boutwell,  507,  508. 

V.  Bowe,  637. 

V.  Burgess,   1091. 

V.  Cairns,   1281. 

V.  Camelford,  616. 

V.  Cansler,  266. 

V.  Chapin,   1002. 

V.  Clark,  172. 

V.  Claxton,  263. 

V.  Collins,  284. 

V.  Columbia     Ins.     Co.,    1209, 
1210. 

V.  Cooley,  745. 

V.  Cooper,  73. 

V.  Curtis,  630. 

V.  Death,  643. 

V.  Doe,  1236. 

V.  Dunton,  1087. 

V.  Fellows,  1281. 

V.  Floyd,  744,  824. 

V.  Follansbee.    575. 

V.  Fonda,  827. 

V.  Foster,  1256. 

V.  Fouche,  1322. 

V.  Fox,  60. 

V.  Furbish,   705. 

V.  Gaines,  406. 

V.  Gale,   1100. 

V.  Gatewood.  824. 

V.  Gilbert,   308. 

V.  Goodwin.  1212. 

V.  Gore.   1133. 

V.  Gorham,  1321. 

V.  Green,  673. 


1442 


TABLE   OF   CASES. 


[BEFEBENCES   ABE   TO   PAGES.] 


th 

V.  Greer,  57. 

Smith 

V.  Raleigh,  792. 

V. 

Griffin,   715. 

V. 

Ratcliffe,  1133,   1134. 

V. 

Hamilton,  586. 

V. 

Rice,   284,  308. 

V. 

Handy,   452. 

V. 

Roberts,  1251. 

V. 

Hardesty,  616. 

V. 

Rochester,  826. 

V. 

Harrington,   246. 

V. 

Rome,  561. 

V. 

Haskins,  1175. 

V. 

Rumsey,  1132. 

V. 

Hastings,   315, 

V. 

Seattle,  669. 

V. 

Henning,  634. 

V. 

Sedalia,  688. 

V. 

Hill,  182. 

V. 

Sheltering  Arms,  1298. 

V. 

Hitchcock,   1008. 

V. 

Shepard,   127,   779. 

V. 

Hodsdon,  1098,  1099.                | 

V. 

Shrieves,  506. 

T. 

Hogg,  1311,  1318 

V. 

Simons,  82. 

V. 

Holden,  946. 

V. 

Slocomb,  895. 

V. 

Horlock,   336. 

V. 

Smith,    247,    420,    472,    476, 

V. 

Hornback,  1000. 

565,  870. 

V. 

Howell,  467,  919. 

V. 

South  Royalton  Bank,  932, 

V. 

Hughes,  906. 

V. 

Sprague,  905. 

V. 

Hunter,  329. 

V. 

Stanley,  425. 

V. 

Ingles,  1309. 

V. 

Strahan,  231-233. 

V. 

Jefts,   914. 

V. 

Surman,  530. 

V. 

Jewett,  185,  566. 

V. 

Taylor,  640. 

V. 

Kelley,  754,  756, 

1226,  1227, 

V. 

Thomas,  1322. 

1242. 

V. 

Towers,  1141. 

V. 

Kemp,  745. 

V. 

Townsend,  362. 

V. 

Kerr,    101,    136, 

792,    854, 

V. 

Vincent,  1197. 

855. 

V. 

Ward,  926. 

V. 

Kimball.   320. 

V. 

Washington,  816. 

V. 

Ladd,  873. 

V. 

West,  283. 

V. 

Langewald,  737. 

V. 

Williams,  1044. 

V. 

Leighton,  526. 

V. 

Whitney,  548. 

V. 

Lind,  1314. 

V. 

Woodworth,  465. 

V. 

Littlefield,    155. 

V. 

Yule,  1086,  1089,  1090, 

V. 

McCarty,  425. 

Smithers  v.  Fitch,  1033. 

V. 

McChesney,   961. 

Smithhurst  v.  Edmunds,  1173. 

V. 

McConathy,  652. 

Smithsonian  Institution  v.  Meech, 

V. 

McConnell,  606. 

230, 

232,  233. 

V. 

McCorkle,  584,  1005. 

Smithwick  v.  Ellison,  556. 

V. 

McDonald,  507. 

Smyles  v.  Hastings,  736. 

V. 

McEnamy,  130,  792. 

Smyth,  Ex  parte,  784. 

V. 

Mclntyre,  616,  633,   641. 

V. 

Carter,  567. 

V. 

Marrable,  99. 

Sneathen    v.    Sneathen,    927,    929, 

V. 

Martin,  883. 

930, 

933.  937. 

V. 

Monmouth    Mut. 

Fire    Ins. 

Snedecor  v.  Freeman,  505. 

Co.,   1178. 

Snedeker    v.    Warring,    537,    538, 

V. 

Moore,  1211. 

539. 

V. 

Mundy,  124. 

Sneed 

V.  Osborn,  585. 

V. 

Osborne,   399. 

Snell 

V.  Levitt,  735,  736. 

V. 

Owen.   651. 

V. 

Snell.  632. 

V. 

Packhurst,  288, 

299. 

Snelling  v.  Lamar,  247,  295. 

V. 

Pearce,  505. 

Snideman  v.   Snideman,  131. 

V. 

Pendell,  306. 

Snide 

r  V.  Lackenour,  930. 

V. 

People's  Bank,  1183. 

Sniveley  v.  Hitechew,  1099. 

V. 

Price,  526,  527. 

Snoddy  v.  Bolen,  517,  873. 

V 

Provin,  505,   508 

Snodg 

rass  V.  Reynolds,  91,  98. 

V 

Putnam,  1029. 

Snow 

V.  Orleans,  883,  935,  1120. 

TABLE   OF   CASES. 


1443 


[BEFEBENCES   ABE  TO   PAGES.] 


Snow  V.  Parsons,  657,  659. 
V.  Perkins,  556. 
V.  Pressey,  1258. 
V.  Stevens,  435. 
Snowden  v.  Tyler,  1092. 
Snowhill  V.  Reed,  132. 
V.  Snowhill,    613. 
Snyder's  Appeal,  213. 
Snyder  v.  Free,  1111. 
V.  Martin,  1310. 
V.  Murdock,  265. 
V.  Nesbitt,  50. 
V.  People,  416. 
Sobey  v.  Brisbee,  86. 
Society  of  Promotion  of  Theologi- 
cal Education  v.  Attorney  Gen- 
eral, 362. 
Society  of  Friends  v.  Haines,  1218. 
Sohier  v.  Eldredge,  75,   783,  1286. 
V.  Trinity    Church,    162,    163, 
697,    698. 
Solberg  v.  Wright,  1229. 
Sollers  V.  Sollers,  600,  602,  825. 
Solomon  v.  Skinner,  1289. 
Somerset  v.  Fogwell,  86,  700,  745, 

746,  850,  920. 
Somerville  v.  Johnson,  219. 
Soper  V.  Guernsey,  1190,  1201. 
Sopwith  V.  Maughan,  457. 
Soule  V.  Hurlburt,  1302. 

V.  Shotwell,  1094. 
Souter  V.  Codman,  156. 

V.  Hull,   1011. 
South  V.    South,   628. 
South  Baltimore  Co.  v.  Muhlbach, 

551,  553. 
South   Berwick   v.    Huntress,    868. 
South    Branch   R.   Co.   v.    Parker, 

1033. 
South  Carolina  Mfg.  Co.  v.  Price, 

1266. 
South  Carolina  Ry.  Co.  v.  Steiner, 

815. 
Southampton  v.  Hertford,  364. 

V.  Mecox  Oyster  Bay  Co.,  822. 
Southard   v.   Central   R.   Co.,   173, 
183,   184. 
V.  Sutton,  1048. 
Southern  v.  Wollaston,  352. 
Southern  Kansas  Ry.  Co.  v.  Sho- 

walter,  819. 
Southern  Pac.  Co.  v.  Burr,  844. 
Southern  White  Lead  Co.  v.  Haas, 

1110. 
Soutter  V.  Miller,  1274. 
Souverbye  v.  Arden,  246. 


Sowers  v.  Cyrenius,  249. 

V.  Peterson,  402. 
Spackman  v.  Steidel,  737,  896. 
Spader  v.  Lawler,  1186,  1187. 
Spalding  v.  Wilson,  388. 
Spangler  v.  San  Francisco,  655. 

V.  Stanler,    430. 
Sparhawk  v.  Wills,  1206. 
Sparks  v.  Hess,  883,  1279,  1293. 

V.  Pierce,  845. 

V.  Pittman,  879. 
Sparrow  v.  Kingman,  443. 

V.  Pond,  522,  527. 

V.  Strong,  837. 
Spaulding's  Appeal,  507. 
Spaulding  v.  Abbot,  586,  703. 

V.  Bradley,   862. 

V.  Crane,   1130. 
Spear  v.  Fogg,  284. 

V.  Fuller,   160,   180. 
Spect  V.  Spect,  1200,  1201. 
Speed  V.  St.  Louis  M.  B.  T.  R.  Co., 

247. 
Speer  v.  Hadduck,  1273. 
Speers  v.  Flack,  1286. 
Speir  V.  New  Utrecht,  1033. 
Spence  v.  McDonough,  656. 

V.  Mobile  &  M  Ry.  Co.,  754. 
Spencer's  Case,  115,  117,  118,  526. 
Spencer  v.  Austin,  376,  377. 

V.  Carr,  935. 

V.  Harford,  1258. 

V.  Kilmer,  707,  708,  709. 

V.  Metropolitan    St.    Ry.    Co., 
814. 

V.  Reese,  925. 
Spensley  v.  Valentine.  687. 
Spicer    v.    Martin,    763,    766,    767, 

770. 
Spike  V.  Harding,  582. 
Spileer  v.  Scribner,  587. 
Spinning  v.  Spinning,  472. 
Spooner   v.    Sandilands,   1282. 
Sprague  v.  Baker.  911. 

V.  Beamer,  507. 

V.  Bond,  1180. 

V.  Cochran,  1283,  1284. 

V.  Fremont.    E.    &    M.    V.    R. 
Co..    588. 

V.  Quinn,  138. 

V.  Rockwell.  1232. 

V.  Sprague,  211. 

V.  Woods,  860.  878. 

V.  Worcester,  660. 
Spread  v.  Morgan,  457. 
Spreckels   v.    Spreckels,   385. 


1444 


TABLE  OF   CASES. 


[references  awf.  to  pages.] 


Sprigge  V.  Sprigge,  957. 
Springer  v.  Berry,  417. 

V.  Bigford,   1112. 

V.  Mclntyre,  719. 
Springs  v.  HanlvS,  878. 

V.  Schenck,  134. 
Spruance   v.    Darlington,    606. 
Spurr  V.  Andrew,  906,  908. 
Squier  v.  Mayer,  551. 
Squire  v.  Harder,  228. 

V.  Mudgett,  512. 
Staats  V.  Ten  Eycli,  913. 
Stacey  v.  Miller,  973. 

V.  Vermont  Cent.  R.  Co.,  1072. 
Stackpole  v.  Healey,  809. 
Stafford  v.  Buckley,  7,  13. 

V.  Pearson,  1322. 

V.  Woods,  1127. 
Stagg  V.  Jackson,  257. 
Stall  V.  Wilbur,  526. 
Stallings  v.  Hullum,  505. 

V.  Newton,  936. 
Stambaugh  v.  HoUabaugh,  873. 

V.  Smith,  900,  906. 
Stanclift  v.  Norton,  1254. 
Standard   Bank   of   British   South 

America  v.  Stokes,  692,   727. 
Standen  v.  Christmas,  116. 

V.  Standen,  630. 
Standifer  v.  Swann,  1047. 
Standiford  v.  Goudy,  708. 
Standish  v.  Lawrence,  758,  760. 
Stanford  v.  Mangin,   891. 
Stanley  v.  Bonham,  501. 

V.  Colt,  161-164. 

V.  Epperson,  880. 

V.  Greenwood,  1122. 

V.  Snyder,  1123. 

V.  White,  529. 
Stannis   v.  Nicholson,   1310. 
Stansbury  v.  Hubner,   1140. 
Stantons  v.  Thompson,  1251. 
Stanwood  v.  Dunning,  423,  424. 

V.  McLellan,  587. 
Staples  V.  Brown,  499. 

V.  Emery,  556. 
Star  V.  Rooksby,  694. 
Star  Brewery  Co.  v.  Primas,  163. 
Stark  V.  Barrett,  395. 

V.  Brown,    1241,    1265,    1266. 

V.  Mercer,   1277. 

V.  Starrs,  845. 
Starke  v.  Wilson,  1281. 
Starkweather    v.    American    Bible 
Soc,  1158. 


Starnes  v.  Hill,  282,  287. 
Starr  v.  Jackson,  140. 
V.  Leavitt,  395. 
V.  Moulton,  618. 
V.  Wright,  1148. 
State  V.  Atherton,  976,  977. 
V.  Bachelder,  845. 
V.  Birmingham,    974. 
V.  Black  River  Phosphate  Co., 

594. 
V.  Blount,  600,  601. 
V.  Bradbury,  978. 
V.  Brown,  816. 
V.  Burke,  897. 
V. 'Burt,   517. 
V.  Davis,   809. 
V.  Elizabeth,  977. 
V.  Gemmill,  522. 
V.  Georgia     Medical     Society, 

12. 
V.  Gilmanton,   596,   891. 
V.  Goodnow,  545. 
V.  Green,  974. 
V.  Holliday,  1260. 
V.  Horn,  1033. 
V.  Klein,  393. 
V.  Laverack,  813. 
V.  Lewis,  600. 
v.  Maine,  820. 
V.  Martin,  117. 
V.  Mason,  1126,  1127. 
V.  Matthews,  869. 
V.  Meagher,  241. 
V.  Morgan,  843,  844. 
V.  Newark,  1320. 
V.  Pitts,  1130. 
V.  Plaisted,   1149. 
V.  Pottmeyer,  598,  599. 
V.  Probate    Court   of   Ramsey 

County,   1058. 
V.  Reeder,   1322. 
V.  Roberts,  601. 
V.  Sargent,   591. 
V.  Sioux  City  &  P.  R.  Co.,  844. 
V.  South  Amboy,  978. 
V.  Suttle,   688.  737,  738. 
V.  Taylor,  1276. 
V.  Trask.  972. 
V.  Travis  County,  980. 
V.  Walker,  614. 
V.  Western    Irrigating    Canal 

Co.,  1156. 
V.  Westfall,  1103. 
V.  Wilson,  593,  875. 
State  Bank  v.  Flathers,  1231. 
V.  Tweedy,  1228. 


TABLE  OF  CASES. 


1445 


[REFKKENCES   ABE   TO   PAGES.] 


State  Bank  at  Trenton  v.  Evans, 

933. 
State  Bank  of  O'Neill  v.  Mathews, 

1179. 
State  Bank  of  St.  Louis  v.  Frame, 

1094. 
State  Sav.  Bank  v.  Kercheval,  537- 

540,  547,  1211. 
Staton  V.  Bryant,  1046. 
Steacy  v.  Rice,  50,  213,  247. 
Stead  V.  Grosfield,  1176. 

V.  Newdigate,  256. 
Steamboat   Magnolia  v.   Marshall, 

828. 
Stearnes  v.  Hill,  317. 
Stearns  v.  Janes,  1027. 

V.  Richmond,  670,  672. 

V.  Sampson,  156. 
Stedman  v.  Fortune,  469. 

V.  Gassett,  1204,  1205. 

V.  Mcintosh,  147. 
Steed  V.  Hinson,  780. 
Steel  V.   Miller,   928. 

V.  St.  Louis  Smelting  &  Refin- 
ing Co.,  844. 

V.  Steel,  322,  1196. 
Steele,  In  re,  74,  501. 

V.  Boley,  1005. 

V.  Fisher,  458. 

V.  Gellatly,  482. 

V.  La  Frambois,  440. 

V.  Moxley,    622. 

V.  Payne,  86. 

V.  Sioux    Valley    Bank,    1091, 
1092. 

V.  Spencer,  1081. 

V.  Steele,  457-459. 

V.  Sullivan,  973. 
Steen  v.  Wardsworth,  123. 
Steeple  v.  Downing,  999. 
Steere  v.  Steere,  231. 

V.  Tiffany,    737. 
Stees  V.  Kranz,  117. 
Steffens  v.  Earle,  148. 
Stegall  V.  Stegall.  465. 
Stehr  V.  Raben,  759,  764. 
Steib  V.  Whitehead,  1141. 
Steifel  V.  Clark,  618. 
Steiger  v.  Hillen,  483. 
Stein  V.  Burden,  656. 

V.  Dahm,  738. 
Steiner  v.  McDaniel,  512. 
Steinhardt  v.  Cunningham,  222. 
Steinmeyer  v.  Steinmeyer,  1224. 
Steiz  v.  Schreck,  383. 
Stelle  V.  Carroll,  434. 


Stephen  v.  Bridges,  133. 
Stephens  v.  Bicknell,  1257. 

V.  Clay,   1274. 

V.  Hume,  489. 

V.  Illinois  Mut.  Fire  Ins.  Co., 
1208. 

V.  Keating,  1319. 

V.  Leach,  999. 

V.  Shriver,  694. 

V.  Stephens,     324,     328,     337, 
350. 

V.  Tucker,  1174. 
Stephenson  v.  Boody,  1045. 

V.  Osborne,  450. 
Sterger  v.  Van  Sicklen,  104. 
Sterling's  Appeal,  813. 
Sterling    Hydraulic    Co.    v.    Wil- 

V.  Jackson,  828. 

V.  Penlington,   494. 

V.  Warden,  156,   678.  681,  683, 
685. 
Sterling    Hydraulic    Co.    v.    Wil- 
liams, 751,  756,  758. 
Stern  v.  Lee,  1127. 
Sternberg's   Estate,   In  re,  961. 
Sternberger  v.  Hanna,  1223. 
Sterry  v.  Arden,  1116. 
Stetson  V.  Day,  484,  573,  575. 
Stetson     Post  Mill  Co.  v.  Brown, 

1300. 
Steuart  v.  Beard,  434. 
Stevens  v.  Chadwick,  1294. 

V.  Cooper,  1225. 

V.  Copp,  184. 

V.  Flower,   1282. 

V.  Hatch,  929. 

V.  Hollingsworth,  1125. 

V.  Holman,  879. 

V.  Kelley,  598,  599. 

V.  King,  891. 

V.  Orr,  709,  710. 

V.  Owen,  427,  451,  866. 

V.  Patterson  &  N.  R.  Co.,  597. 

V.  Reynolds,  399,  401. 

V.  Rose.  569-571,  575.  576. 

V.  Smith.  427.  433,  437. 

V.  Stevens.  367.  429.  472. 

V.  Taft.  823. 

V.  Taylor,  178. 

V.  Thompson.  396.  397. 

V.  Wait,  389. 

V.  Winship.    633. 
Stevens  Point  Boom  Co.  v.  Reilly, 

827. 
Stevenson  v.  Cofferin,  401. 

V.  Crapnell,  228. 


1446 


TABLE  OF   CASES. 


[references   ABE   TO   PAGES.] 


Stevenson    v.    Lambard,    787,    797, 
798. 

V.  Lohr,  910. 

V.  Polk,   1196. 

V.  Texas  &   P.  Ry.  Co.,   1097, 
1397. 

V.  Wallace,   712. 
Steward  v.   Wolveridge,   781. 
Stewart  v.  Apel,  88. 

V.  Berry,  1311. 

V.  Doughty,  528. 

V.  Drake,   911,   916. 

V.  Duffy,  1013. 

V.  Flint,   1153. 

V.  Prink,  1033. 

V.  Harriman,  948. 

V.  Hartman,  714. 

V.  Hollins,  13^2. 

V.  Long    Island    R.    Co.,    113, 

V.  McSweeney,   1119. 
114,  117,  119. 

V.  Matheny,  75,   1091. 

V.  Matthews,  623. 

V.  Neeley,  306. 

V.  Preston,  1227. 

V.  Roderick,   123. 

V.  Ross,  495,  498-500. 

V.  Sheffield,  955. 

V.  Smith,    1314. 

V.  Stewart,  397,  398,  951. 

V.  Stokes,  620. 

V.  Wheeling     &     L.     E.     Ry. 
Co..  1308. 
Stickney's   Will,    In   re,    162,    166, 

353. 
Stidham  v.  Matthews,  452. 
Stilley  V.  Folger,  462. 
Stillings  V.  Turner,  1112. 
Stillman   v.    Flenniken,    541,    543, 
546. 

V.  Looney,  1191. 

V.  Stillman,  1247. 
Stillwell  V.  Foster,  710. 
Stinchfield  v.  Emerson,  1048. 

V.  Little,   937. 

V.  Milliken,    1179,    1206,    1210. 
Stines  v.  Dorman,  765. 
Stinson  v.  Ross,  1197. 

V.  Stinson,  778. 
Stockbridge  Iron  Co.  v.  Cone  Iron 
Works,    184. 
V.  Hudson  Iron  Co.,  745-747. 
Stocker  v.  Foster,  638. 
Stockport  Water  Works  Co.  v.  Pot- 
ter, 661,   678.  688,   1030. 
Stocks  V.  Booth,  730. 
Stockton  V.  Weber,  167. 


Stockwell  V.  Campbell,  539. 

V.  Hunter,  136. 

V.  McHenry,  1082. 

V.  Phelps,  525. 
Stoddard  v.  Emery,  112. 

V.  Gibbs,  487,  493. 

V.  Whiting,  1119. 
Stoddart  v.  Hart,  1185. 
Stoever  v.  Stoever,  1273. 

V.  Whitman,    1119. 
Stoff  V.  McGinn,  615. 
Stogdon  V.  Lee,  1142. 
Stokes  V.  Norwood,  458. 

V.  Payne,  618. 

V.  State,  1320. 
Stokoe  V.  Upton,  551. 
Stone  V.  Clark,  889. 

V.  Duvall,  933. 

V.  Hackett,   223. 

V.  Lane,  1185. 

V.  Missouri  Guarantee  Sav- 
ings &  Building  Ass'n, 
1260. 

V.  Patterson,  1204. 

V.  Sledge,  866. 

V.  Vandermark,  456. 

V.  Wood,  938. 
Stonehewer  v.  Thompson,  1241. 
Stoner  v.  Rice,  596,  891. 
Stoolfors  V.  Jenkins,  489. 
Storrs  V.  Benbow,  361. 
Story  V.  New  York  Elevated  R.  R. 
Co.,  815. 
V.  Odin,  687. 
Stott  V.  Rutherford,  96. 
Stoudinger  v.  Newark,  812. 
Stoughton  V.  Leigh,  426,  428,  472, 
473,  516,  517,  561,  563. 

V.  Pasco,   1184. 
Stout  V.  McAdams,  659,  662. 

V.  Stout,  345. 
Stoutz  V.  Rouse,  1170. 
Stover  V.  Stover,  389. 
Stow  V.  Tifft,  425. 
Stowe  V.  Bowen,  241. 
Stowell  V.  Bennett,  914. 

V.  Pike,  1212. 
Stowers  v.  Postal  Telegraph  Cable 

Co.,  812. 
Strain  v.  Sweeny,  320. 
Strang  v.  Allen,  1215. 
Strange   v.   Hill   &   W.   D.   S.   Ry. 

Co.,   980. 
Strasson  v.  Montgomery,  874. 
Strathmore  v.  Bowes,  495. 
Stratton  v.  Bailey,  416. 

V.  Gold,  1293. 


TABLE   OP   CASES. 


1447 


[EEFEBENOES   ABE   TO   PAGES.] 


Stratton  v.  Lyons,  516. 
Straus  V.  Rost,  290. 
Straut,  In  re,  220. 
Strawn  v.  Norris,  934. 

V.  Strawn,  480. 
Streaper  v.  Fisher,  782. 
Street  v.  Beal,  1242,  1265. 

V.  Banner,  4u7. 
Stribling  v.  Ross,  446. 
Strickland  v.  Kirk,  1088,  1294. 
Strilver  v.   Mott,  306. 
Strimpfler  v.  Roberts,  230. 
Stringfellow  v.  Ivie,  1289. 

V.  Tennessee     Coal,     Iron     & 
Railroad  Co.,  1005. 
Strobe  v.  Uowner,  1267. 
Strode  v.  McCormick,  284,  307. 

V.  Seaton,  1041. 
Stroebe  v.  Fehl,  412. 
Strohauer  v.  Voltz,  1218. 
Strong  V.   Allen,   1265. 

V.  Blanchard,   1202. 

V.  Clem,  470. 

V.  Converse,  436,  1216. 

V.  Doyle,  557,  558. 

V.  Garrett,  506,  508. 

V.  Lord,  255. 

V.  Mackeever,  1033. 

V.  Manufacturers'      Ins.      Co., 
1207,  1208. 

V.  Messinger,  230,  232. 
Strother  v.  Barr,  577. 
Stroud  V.  Allison,  1292. 
Stroup  V.  Stroup,  433. 
Stuart  V.  Baker,  4D4. 

V.  Coalter,  582. 

V.  Easton,  164,  194. 

V.  Pennis,  530. 
Stubbings   v.    Evanston,    126,    135. 
Stucke  V.  Milwaukee  &  M.  R.  Co., 

589. 
Stuckey  v.  Keefe,  379,  380. 
Stucky  V.  Stucky,  228. 
Studdard  v.  Wells,  163. 
Studebaker  Bros.  Mfg.  Co.  v.  Mc- 

Cargur,  1228,  1263. 
Studstil  V.  Willcox,  1013. 
Studwell  V.   Shapter.   1148. 
Stukeley  v.  Butler,  528. 
Stull  V.  Harris,  1151. 

V.  Rich  Patch  Iron  Co.,  1016. 
1017. 
Stults  V.  Brown,  1295. 
Stump  V.  Findlay,  295. 

V.  Henry,  1008. 
Stumpf  V.  Osterhage,  1007. 


Sturgeon  v.  Wingfield,  1040. 
Sturges  V.  Bridgman,  662,  654,  G74, 

687,   1029. 
Sturgis  V.  Champrey,  413. 

V.  Bwing,  485. 
Stutts  V.  Sale,  1123. 
Stuyvesant  v.  Hall,  1083. 

V.  Hone,  1083. 

V.  Woodruff,  1024. 
Suchaneck  v.  Smith,  799. 
Suffield  V.  Brown,  711,  712. 

V.  Hathaway,   809. 
Suffolk  Fire    Ins.   Co.   v.   Boyden, 

1210. 
Sullivan  v.  Carberry,  551,  552. 

V.  Chambers,  205. 

v.  Enders,  142. 

V.  Flynn,   1154,   1155. 

V.  Foley,   953. 

V.  Graffort,   728,   760. 

V.  Jones,   542. 

V.  McLenans,   229. 

V.  Royer,  652. 

V.  Sullivan,  406,  949. 

V.  Tichenor,  1006. 

v.  Zeiner.  1032. 
Sully  V.  Schmitt,  128. 
Sulzbacher  v.  Dickie,  93. 
Summer  v.   Mitchell,  926. 
Summers    v.    Babb,    64,    453,    470, 
477,  484. 

V.  Bromley,  1262,  1267. 

V.  Donnell,  475. 

V.  Moore,    230. 

V.  Roos,   1186. 

V.  Smith,  302,  329. 
Sumner  v.  Child,  1059. 

V.  Conant,   1145. 

V.  Darnell.  162,  164. 

V.  Partridge,  491. 

V.  Seaton,  586. 

V.  Stevens,    1013. 
Sunday   Lake    Min.    Co.    v.    Wake- 
field. 187. 
Surget  V.  Arighi.  97. 
Surginer  v.  Paddock.  844. 
Surplice  v.  Farnsworth,   129. 
Susquehanna     Fertilizer     Co.     v. 

Malone,  653. 
Susquehanna  &  W.  V.  Railroad  & 
Coal  Co.  V.  Quick.  389,  390.  917, 
1007. 
Sussex    County    Mut.    Ins.    Co.    v. 

Woodruff,    1210. 
Sutherland  v.  Harrison,  1245. 

V.  Heathcote,  747. 


1448 


TABLE   OF   CASES. 


[BEFEKENCES    A.BE   TO   PAGES.] 


Sutherland  v.  Jackson,  894. 

V.  Sutherland,  423,  444. 
Sutliff  V.  Forgey,  1158. 
Sutphen  v.  Therkelson,  706. 
Suttle  V.  Richmond,  F.  &  P.  R.  Co., 

1048. 
Sutton  V.  Aiken,  213. 

V.  Askew,  445. 

V.  Casseleggi,  417. 

V.  Groll,  729. 

V.  Head,  753. 

V.  Jervis,  421. 

V.  Pollard,  998. 
Suydam  v.   Dunton,  735. 

V.  Jackson,   101,  570,  571. 

V.  Jones,   915. 
Svetinich  v.  Sheean,  385. 
Swafford  v.  Whipple,  913. 
Swain  v.  Ferine,  435,  444,  462. 

V.  Stockton  Sav.  &  Loan  Soc, 
1247. 
Swan  V.  Benson,  1290. 

V.  Goodwin,  260. 

V.  Hammond,  963. 

V.  Munch,  688. 

V.  Wiswall,   1266. 

V.  Yaple,  1230. 
Swandale  v.  Swandale,  1133. 
Swann  v.  Thayer.  1010. 
Swansborough  v.  Coventry,  706. 
Swansea  v.  Thomas,  781,  787. 
Swart  V.  Service,  1179. 
Swartz  V.  Ballon,  868. 

V.  Hazlett,  1111. 

V.  Leist,  1233. 
Swasey    v.    American    Bible    Soc, 

363. 
Swayze  v.  Carter,  587. 
Swazey  v.  Brooks,  703. 
Sweaney  v.   Mallory,   466. 
Swearingen  v.  Bassett,  1128. 
Swedish-American    Nat.    Bank    v. 
Connecticut   Mut.   Life  Ins.  Co., 
718. 
Sweeney  v.  Warren,  633. 
Sweet  V.  Rechel,  1073. 

V.  Sweet,  958. 
Sweetapple  v.  Bindon,  493. 
Sweetman  v.  Prince,  127. 
Sweetzer  v.   Jones,   1221,  1224. 
Swepson  v.  Rouse.  265. 
Swett  V.  Cutts.  664,  665,  1030. 

V.  Horn,  1236. 
Swift's  Appeal,   640. 
Swift  V.  Calnan,  693. 

V.  Dean,  124. 


Swift  V.  Mulkey,  1016. 

V.  New    Durham    Lumber    Co., 
799. 
Swindon  Waterworks  Co.  v.  Wilts 

&  C.  Navigation  Co.,  661. 
Swinton  v.  Bailey,  957,  958. 
Switzer  v.  Knapps,  921. 
Sykes  v.  Sykes,  438. 
Syme  v.  Sanders,  123. 
Symonds  v.  Hall,  533. 


Tabb  v.  Baird,  1118. 
Taber  v.  Hamlin,  1188. 
Tabor  v.  Bradley,  688. 

V.  Foy,    1232. 
Taffts  V.   Manlove,  1315. 
Taft   V.   Stoddard,   1244. 

V.  Taft,  930,  932. 
Taggart  v.  Risley,  1041,  144. 

V.  Warner,    739. 
Tainter  v.  Clark,  622,  624. 

V.  Cole.    394. 

V.  Morristown,  819. 
Talamo  v.  Spitzmiller,  87. 
Talbot  V.  Cruger,   552. 

V.  Hill,  485. 
Talbot  V.  Whipple,  855. 
Talbott  V.  Armstrong,  421. 

V.  Thorn,   1027,   1028. 
Taliaferro  v.  Burwell,  490. 

V.  Gay,  1169. 
Tallmadge    v.    East    River    Bank, 

762,   766,   767. 
Tallman  v.  Coffin,   119. 

V.  Ely,  1200. 

v.  Murphy,  128. 

V.  Wood,  239. 
Taltarum's  Case,  66. 
Tampa  Water  Works  Co.  v.  Cline, 

655,  656,  658. 
Taney  v.  Fahnley,  317. 
Tanguay  v.  Felthousen,  1217. 
Tanner   v.    Dorrell,   301. 

V.  Mutual      Benefit      Building 
Ass'n.   1135. 
Tanney  v.  Tanney,  399,  400. 
Tapley  v.  Tapley,  879. 
Tapling  v.  Jones,  651. 
Taraldson  v.  Lime  Springs,  1006. 
Tarbell  v.  Tarbell,  463. 

V.  West,  1078. 
Tarboro  v.  Micks.  1313. 
Tarbuck  v.  Tarbuck,  340. 
Tardy  v.  Creasy,  753. 


TABLE   OF   CASES. 


1449 


[EEFEBENCES 

Tarver  v.  Haines    623. 
Tasker  v.  Bartlet  ,  922. 
Tate  V.  Fratt,  692,  72b. 
V.  Jay,  422,  448 
V   Lawrence,  92d. 
V.  Tate,  929. 
Tafem  v.  Chaplm,  !"• 
Tatge  V.  Tatge,  235 
Tatham  v.  Vernon    355. 
Tatro  V.  Tatro,  464^ 
Taul  V.  Campbell,  381 
Tavenner   v.   Barrett    925 
Tayloe  v.  Gould    493,  494. 

V  Johnson.  25b. 
Taylor's    Estate,    459 
Taylor  v.  Baldwin    397 

V.  Benliam,  245,  613 

V.  Boulware,  112b,  li^*- 

V  Bradley,  91. 
V.  Caldwell,   679. 

V  Cedar    Rapids    &    bt.    f. 

Co.,  181. 
V.  Cleary,  45. 
V.  De  Bus,  782,  797. 
V.  Dyches,   686. 

V  Eatman,    628. 

V.  Fickas,  664,  665. 
V.  Fomby,  1014. 
V.  Fowler,  448. 
V.  Frohock,  191. 

V  Oilman,  908. 

v!  Glaser,  922,  923. 
V.  Hargons,  1131. 

V  Harrison,  862. 
V.  Hart,  136,  792. 

V  Harwell,    1138. 
v'.  Hill,   389. 

V.  Kemp,  75. 
V.  Lawrence,  469. 
V.  Lindsay,  311. 
V    McConnell,  1213. 
V.  Maris,  1084. 
V.  Martindale,  13. 
V.  Mason,  167. 

V.  Meads.  415. 

V.  Millard,    739,   746. 

V.  Murphy,    1299. 

V  Owen,  757. 
V.  Page,   123L 

V  Preston,    751,    121  ^ 

V  St.  Helens,  689. 
Y.  Short,    1225. 

V.  Smith,  492. 

V    Sutton,  160,  167. 

V.  Tarr.  1247. 


ARE  TO   PAGES.] 

Tavlor  V    Taylor,   61.    63.    278-300. 
I  ^^^  357.  463,  464,  468. 

V.  Warnaky.   714. 
V.  Whitehead,    721. 
V    Whitmore,  1217. 
Tazewell  v.  Smith   258 
Teaff  V.  Hewitt.  537-539,  541. 
Teal  V.  walker,  11-7    1-01, 
Teets  V.  Weise,  285    308. 
Tefft  V.  Munson,  1080. 
Teft  V.  Hinchman    131. 
Telfair  v.  Howe,  373,  375. 
Telford  V.  Garrels    1247. 
Teller  v.  B«J^e^  791.  ^^^^ 

Temperance   House   v.   x « 

Temple  V.  Scott.  283.  284. 
Templeton  v.  Twitty,  491. 

V.  Voshloe    665. 
Tenant  v.  Goldwm,  668,  72b. 

V.  Roe,   938. 
Ten  Eyckv.  Casad,  1202. 
V.  Craig.    1198,    liy^- 
Teneick   v.    Flagg,    254 
Tennant  V.  Watson,  1317. 
Tennery  v.  Nicholson.  1170. 
Terhune  v.  Bray  s  Ex  rs.  H^b. 

V.  Elberson,   o2b. 
Terrell  v.  Allison   1266. 
V.  Hurst,  1135. 
V    McCown.  619. 
v".  Prestel,  1309 
Territory  v.  Bramble,  507. 

V.  Deegan,  818. 
Terry  v.  Berry.  1128. 
V.  Chandler,  584. 
V.  Curry,  470. 
V    Rodahan,  628,  630. 

Benevolent   Soc.,  132,    <yu. 
Tewkesbury  v.  Magraff,  125. 
Tex  V.  Pfiug.  1014^ 
Texas   v    Thorn    84-.  .^^^ 

Texas    Loan    Agency 

^^^'  c  T5   Bv   Co   V.  Rosedale  St. 
Texas  &  P-  "■J-  '^"• 

^^-  ^^"Z\    R    Co.   V.   Jarrell, 
Texas  &  St.   l.    i^- 

701.  -7R 

Thacker  v.  Phinney.  o76. 
Thackeray  v.  Eldigan    575. 
Thames  v.  Rembert.  1113. 
Thatcher  v.  0"Jf  !•  |^^- 
Thayer  v.  Arnold    o88. 

V.  Finnegan,  i.i»i. 

V.  McGee,   194. 


1450 


TABLE   OF   CASES. 


[BEFEEENCES   ABE   TO   PAGES.] 


Thayer  v.  McLellan,  1006. 

V.  New  Bedford  R.  Co.,  597. 

V.  Payne,  705,  709. 

V.  Thayer,   444,   445,   468. 

V.  United  Brethren,  125. 

V.  Wellington,    225,   956. 
Theisen  v.  Dayton,  1252. 
Thelluson    v.    Woodford,    350,    351, 

364. 
Theobald  v.  Louisville,  N.  0.  &  T. 

Ry.  Co.,  813,  815. 
Theological   Seminary   v.   Calhoun, 
948. 

V.  Wall,    67. 
Thetford  v.  Tyler,  154. 
Thielman  v.  Carr,  1302. 
Third    Nat.    Bank    of    Chattanooga 

V.  O'Brien,  924. 
Third     Presbyterian    Congregation 

V.  Andruss,  698,  730. 
Thistle  V.  Buford,  1048. 
Thoemke  v.  Fiedler,  678,  679,  682, 

1026. 
Tholen  v.  Duffy,  1276. 
Thomae  v.  Thomae,  341. 
Thomas  v.  Bridges,  1289,  1290. 

V.  Churchill,  235. 

V.  Cook,  857. 

V.  Davis,  539. 

V.  England,  1026. 

V.  Evans,  76,  553. 

V.  Flood,  972. 

V.  Folwell,   415. 

V.  Ford,  810,  824,  1033. 

V.  Garvan,   389. 

V.  Gregg,  355,  647. 

V.  Hanson,  425. 

v.  Hayward,  118. 

V.  Hesse,  474. 

V.  Higgins,  61,  62. 

V.  Hunt,  810,  893. 

V.  Kennedy,  1310,  1312. 

V.  Lines,  526. 

V.  Marshfield,    744. 

V.  Owen,  708,  897. 

V.  Pullis,  1046. 

V.  Record,   182,  186. 

V.  St.    Paul's    Methodist    Epis- 
copal  Church,  904. 

V.  Sanford   Steamship  Co.,   87, 
142. 

V.  Sorrell,  678,  682. 

V.  Sylvester,  794. 

V.  Thomas.    75,    393,    421,    734, 
1246. 

V.  Von  Kapff,  117,  1208. 


Thomas  v.  Wyatt,  867. 
Thomasson  v.  Townsend,  1276. 
Thomman,  In  re,  258. 
Thompkins    v.    Henderson,    1086. 
Thompsen  v.  Allen,  1112. 
Thompson,  In  re,  435. 

V.  Avery,  1305. 

V.  Barber,  379,  395. 

V.  Bird,  1224. 

V.  Bostick,   393. 

V.  Bowman,   388. 

V.  Bulson,   695. 

V.  Burhans,  1018. 

V.  Cochran,   433,   434. 

V.  Corrie,  1292. 

V.  Crocker,  660. 

V.  Ela,   1258. 

V.  Gaillard,    606. 

V.  Gregory,  700. 

V.  Hoop,   326,  458. 

V.  Jones,  931. 

V.  Kenyon,   1258. 

V.  Leach,  935,  1154. 

V.  McCorkle,  399. 

V.  Maddux,    1231. 

V.  Major,    818. 

V.  Marshall,  1274. 

V.  Morrow,   476,   477. 

V.  Mlirphy,  73. 

V.  Pioche,  1008,  1086. 

V.  Richards,    1120. 

V.  Rose,  119. 

V.  Sanborn,  1045. 

V.  Shakspear,  1139. 

V.  Sheppard,  889. 

V.  Smith,  1004. 

V.  Thompson,     163,     423,     860, 
876,   935,  1218. 

V.  Uglow,  725. 

V.  Vance,  429. 

V.  Whipple,  188. 
Thoms  V.  Southard,  1100. 
Thomsen  v.  McCormick,  819,  980. 
Thomson  v.  Ludington,  285. 

V.  Norris,  638. 

v.  Smith,  265. 

v.  Waterlow,   703. 
Thong  V.  Bedford,  316. 
Thorington  v.  Thorington,  289,  648. 
Thormaelen  v.  Kaeppel.  1148,  1150. 
Thorn  v.  Ingram,  425,  1289. 

v.  Thorn,  1128. 

v.  Woolcombe,  114,  132. 
Thornborough  v.  Baker,  1181,  1264. 
Thornburg  v.  .Jones,  1271. 

v.  Wiggins,  380. 


TABLE  OF   CASES. 


1451 


[BEFEBENCES   ABE  TO  PAGES.] 


Thorndike  v.  Loring.  364. 
Thornley  v.  Tlioruley,  382. 
Thornton  v.  Bright,  617. 

V.  Burch,    523. 

V.  Grant,  1038. 

V.  Krepps,  492. 

V.  Pigg,  1195,  1276. 

V.  Thornton,  380,  382. 

V.  Trammell,   160,   163,    164. 
Thoroughgood's  Case,  34,  879. 
Thorp  V.  Keokuk  Coal  Co.,  1219. 

V.  McCullum,  612. 

V.  Yarborough,  867. 
Thorpe  v.  Hanscom,  1153,  1154. 
Thrasher  v.  Ballard,  617,  636,  637. 
Threadgill  v.  Butler,  868,  869. 
Threat  v.  Moody,  1131. 
Thre'r  v.  Barton,  132. 
Thresher    v.    East    London    Water 

Works,  552. 
Throckmorton  v.  Burr,  401. 
Thropp  V.  Field,  176,  187. 
Thunder   Bay   River    Booming  Co. 

V.  Speechly,  827. 
Thurber  v.  Dwyer,  143. 

V.  Martin,  657,  662,  1030. 
Thursby    v.    Plant,    108,    781,    782, 

795-798. 
Thurston,  Petitioner,  246. 
Thurston  v.   Dickinson,  396. 

V.  Hancock,   670. 

V.  Maddocks,  1128. 
Thwaytes  v.  Dye,  617. 
Tibbetts  v.  Home,  542,  543. 

V.  Langley  Mfg.   Co.,  445,  483. 
Tichenor  v.  Dodd,  1218. 
Tidd  V.  Lister,  240. 
Tiddy  v.  Graves,  495. 
Tidewater  Co.  v.  Coster,  717. 
Tiernay  v.  Claflin,  1113. 
TifEt  V.  Buffalo,  819. 

v.  Horton,    542-544. 
Tilden  v.  Green,  251. 
Tilford  V.  Dotson,  531. 
Tilghman  v.  Little,  123,  124. 
Tilley  v.  King,  159,  166. 
Tillinghast  v.  Bradford,  1141. 

V.  Champlin,  255. 

V.  Coggeshall,  492. 
Tillis  V.  Treadwell,  702. 
Tillotson  V.  Kennedy,  121,  134. 

V.  Millard,  1131. 

V.  Mitchell,  1088.   1089. 

V.     Prichard,  915. 

V.  Smith,  661. 
Tilton    V.    Schofield,    1099. 


Timberlake  v.    Parish,   305. 
Timlin    v.    Standard    Oil    Co.,    104. 
Timm  v.  Bear,  657. 
Timon  v.  Whitehead,  587. 
Timothy  v.  Chambers,  1131. 
Tincomb  v.  Morrill,  228. 
Tindal  v.  Drake,  205. 
Tingier  v.   Chamberlin,   367. 
Tinicum  Fishing  Co.  v.  Carter,  686, 

742. 
Tink  V.  Walker,  433. 
Tinker  v.  Forbes,  651,  686,  763. 
Tinkham  v.  Erie  Ry.  Co.,  184. 
Tinsley  v.  Jones,  64. 
Tisdale  v.  Tisdale,  399. 
Titley  v.  Davis.  1242. 
Titsworth    v.    Stout,   398,    399,   401, 

1252. 
Titus  V.  Morse,  587. 
Tobey  v.  Moore,  353,  767,  769. 
Tobias  v.  Ketchum,  456. 
Tobin  v.  Bass,  937. 
Tod  V.  Baylor,  476. 
Todd   V.   Johnson,    1241. 

V.  Nelson,  1112. 

V.  Outlaw,   1099,   1100. 

V.  Oviatt,  494. 

V.  Pittsburg,    Ft.    W.    &   C.    R. 
Co.,  973. 

V.  Sawyer,  1140. 

v.  Stokes,  760. 

V.  Wortman,    606. 
Todemier  v.  Aspinwali,  445. 
Todhunter  v.  Des  Moines,  353. 
Toland  v.  Corey,  1088. 
Tolle  v.  Correth,  657. 

V.  Orth,  151,  152. 
Toilet  v.  Toilet,  620,  635,  636. 
Tolman  v.  Smith,  584.  1014,  1248. 
Tomblin  v.  Fish,  758,  761. 
Tome  V.   Merchants'  &   Mechanics' 
Permanent  Building  &  Loan  Co., 
1267. 
Tomkins  v.  Miller,  615. 
Tomle  V.  Hampton,  104. 
Tomlin  v.  Blunt,  185. 

V.  Hilyard,  404. 
Tomlinson  v.  Day,  798. 

V.  Nickell,  430. 

v.  Tomi)son.  1211. 
Tompkins  v.  Wiltberger.  1260. 
Tomppert  v.  Tomppert,  420. 
Tonawanda  R.  Co.  v.  Munger.  696. 
Tong  V.  Eifort.  1132. 

V.  Marvin.  502. 
Tongue  v.   Nutwell,  554,   1046. 


1452 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Toothe  V.  Bryce,  707,  710,  711. 

Topeka  v.  Cowel,  974. 

Topeka  Water  Supply  Co.  v.  Root, 

1126. 
Torrence  v.  Carbry,  423. 

V.  Irwin,  93. 
Torrey  v.  Burnett,  552. 

V.  Cameron,  231. 

V.  Cook,  1189,  1271. 

V.  Deavitt,  1226. 

V.  Minor,   466. 

V.  Torrey,  381. 
Tottel  V.  Howell,  850. 
Totten  V.  Stuyvesant,  441. 
Tourtelot  v.  Phelps,  688. 
Tower  v.  Fetz,  1179,  1216. 
Towles  V.  Fisher,  629. 
Towne  v.  Butterfield,  140. 
Towner  v.  Wells,  1306. 
Townley  v.  Bedwell,  266. 

V.  Sherborne,  241. 
Towns  V.  Matthews,  505. 
Townsend  v.  Corning,  938. 

V.  Isenberger,  533,  773. 

V.  Little,  1090. 

V.  McDonald,  690. 

V.  Nickerson  Wharf  Co.,  91. 

V.  Walley,   605,   608. 

V.  Ward,  1218. 
Townsend    Sav.    Bank    v.    Epping, 

1266,  1267. 
Townshend  v.  Howard,  958,  960. 
Towsley  v.  Smith,  427. 
Tracy  v.  Atherton,  714,  1021,  1023. 

V.  Murray,  459. 
Trafton  v.  Hawes,  321,  861. 
Traphagen  v.  Burt,  387. 
Trapnall  v.  Merrick,  795. 

V.  Richardson,  1311. 

V.  State  Bank,  1196. 
Trasher  v.  Everhart,  922. 
Trask  v.  Patterson,  411. 
Traster  v.  Nelson,  903. 
Traute  v.  White,  693,  728. 
Travis  v.  Topeka  Supply  Co.,  1099. 
Trayser    v.    Indiana    Asbury    Uni- 
versity, 1253. 
Treadwell  v.  Cordis,  623. 

V.  Inslee,  689. 

V.  Salisbury  Mfg.  Co.,  1156. 
Treat's  Appeal,  250. 
Treat  v.  Bates,  660. 

V.  Dorman,    526. 

V.  Lord,  826. 

V.  Parsons,  600. 

V.  Reilly,  402. 


Trentman  v.  Neff,  882. 

Trenton    Banking    Co.    v.    Duncan, 

1047. 
Trentor  v.  Pothen,  1088. 
Tress  v.  Savage,  88,  148. 
Trevivian  v.   Lawrence,   1041. 
Trevor  v.  Trevor,  313. 
Trezevant  v.  Terrell,  1112. 
Trice  v.   Kayton,   906. 
Trieber  v.  Knabe,  802,  803. 
Trimble  v.  Hunter,  1309. 
Trimm  v.  Marsh,  1195,  1196. 
Trinidad   Asphalt   Co.    v.    Ambard, 

519. 
Tripe  v.  Marcy,  1012,  1255. 
Triplett  v.  Parmlee,  1212. 
Tripp  V.  Hasceig,  526,  527. 

V.  Ide,  1272. 
Tritch  V.  Norton,  1302. 
Tritt  V.  Hoover,  583. 
Trollope  v.  Linton,  617. 
Trost  V.  Dingier,  952. 
Trotter  v.  Barrett,  819. 

V.  Hughes,  1217,  1220. 

V.  Neal,   1013. 
Troutman    v.    De    Boissiere,    etc., 

Ass'n,   251,   362. 
Trowbridge  v.  Cross,  1128. 
Troxell  v.  Silverthorn,  1249. 
Trucks  V.  Lindsey,  1182. 
True  V.  Morrill,  1125. 
Truell  V.  Tysson,  632. 
Truesdale  v.  Ford,  1007. 
Truett  V.  Adams,  872. 
Trull  V.  Eastman,  751. 

V.  Fuller,  546. 

V.  Granger,  90,  789. 

V.  Skinner.   1215,    1216. 
Trullinger  v.  Koford,  1304. 
Truman  v.  Lore,  919. 
Trumbull    v.    Trumbull,    315,    316, 

429. 
Trumpower  v.  Marcey,  1090. 
Trussell  v.  Lewis,  584. 
Trustees  v.  Spencer,  751. 
Trustees        Methodist        Episcopal 
Church  of  Hoboken  v.  Hoboken, 
972,   973,   975. 
Trustees    of    Columbia    College    v. 
Lynch,  763,  765,  766. 

V.  Thacher,  769. 
Trustees  of  Donations  v.  Streeter, 

1194,  1197. 
Trustees     of     Hollis'     Hospital     & 
Hague's  Contract,  In  re,  353. 


TABLE   OF   CASES. 


1453 


[references   ABE   TO   PAGES.] 


Trustees    of   Hopkins    Academy   v. 

Dickinson,  1038,   1039. 
Ti'ustees    of    Poor,    Queen    Anne's 

Co.v.  Pratt,  447. 
Trustees  of  Putnam  Free  School  v. 

Fistier,  1119. 
Trustees   of   St.   Mary's   Church   v. 

Miles,  782,  793. 
Trustees  of  Schools  v.  Wright,  1287. 
Trustees   of   Theological   Seminary 

of  Auburn  v.  Calhoun,  948. 
Trustees     of     Third     Presbyterian 

Congregation  v.  Andruss,  730. 
Trustees  of  Union  College  v.  Wheel- 
er, 1231. 
Trustees  of  Western  University  v. 

Robinson,  821. 
Tryon  v.  Munson,  1168,  1197. 
Tuck  V.  Pitts,  482,  483. 
Tuckahoe  Canal  Co.  v.  Tuckahoe  & 

J.  R.  R.  Co.,  10,  12. 
Tucker,  In  re,  1279. 

V.  Allen,  880. 

V.  Andrews,  495. 

V.  Clark,  1042. 

V.  Cooney,  911. 

V.  Eldred,  809. 

V.  Field,  1176. 

V.  Moreland,  1149,  1150. 

V.  Newman,  731. 

V.  Salem    Flouring    Mills    Co., 
722. 

V.  Tilton,  1088. 

V.  Vandermark,  1317. 

V.  Zimmerman,  220. 
Tulk  V.  Maxhay,  762,  764. 
Tuller's   Will,    In   re,   963. 
Tulloch  V.  Worrall,  389. 
Tully  V.  Dunn,  91. 

V.  Harloe,  1185,  1186. 
Tumlinson  v.   Swinney,   1134. 
Tunis  V.  Grandy,  780,  789. 
Tunison  v.  Chamblin,  1149. 
Tunno  v.  Robert,  1245. 
Tunstall  v.  Christian,  670,  690,  712, 

1032. 
Tuohy  V.  Martin,  1281. 
Tupper  V.  Huson,  974. 
Turley  v.  Massengill,  1136,  1138. 

V.  Turley,   367. 
Turman  v.  Bell,  1089,  1178. 
Turnbull  v.  Rivers,  715. 
Turner  v.  Argo,  1124. 

V.  Baker,   583,  1002. 

V.  Cameron,  803. 


Turner     v.     Cameron's     Coalbrook 
Steam  Coal  Co.,  799. 

V.  Cook,    946,    947. 

v.  Davis,   255. 

V.  Dawson,  261. 

V.  Field,  922. 

V.  Hart,  688,  722,  1026,  1029. 

V.  Johnson,  12U6. 

V.  Laird,  1281. 

V.  Meyers,  487. 

V.  Morris,  481. 

V.  Rising   Sun   &  L.   Turnpike 
Co.,  820. 

V.  Rusk,   1154. 

V.  Scheiber,  510. 

V.  Shaw,  1147. 

V.  Stephenson,   1017,   1018. 

V.  Strenzel,  1299. 

V.  Thompson,   687,  706. 

V.  Turner,  13,  512. 

V.  Watkins,   1195,   1274. 

V.  Wright,  559,   569. 
Turnman  v.  Cooper,  871. 
Turpie  v.  Lowe,   1170. 
Turrill  v.  Northrop,  63. 
Tuten  V.  Gazan,  926. 
Tuthill  V.  Morris,  1238. 

V.  Tracy,  1273. 
Tuttle  V.  Gilbert  Mfg.  Co.,  103. 

V.  Robinson,  547. 

V.  Turner,  936. 

V.  Walker,   704. 
Twichell  v.   Mears,    1218. 
Twiney  v.  Smith,  483. 
Twining  v.  Burlington,  1005. 
Twynam  v.  Pickard,  120. 
Twyne's  Case,  1111,  1114. 
Tyler,  In  re,  362. 

V.  Hammond,  894. 

V.  Jewett,   1127. 

V.  Judges    of    Court    of    Regis- 
tration,   1103,    1104. 

V.  Moore,  870. 

V.  Tvler,  962. 

V.  Wilkinson,  688,  1021,  1028. 
Tyrrel's  Case,  215. 
Tyrrell  v.  Ward,  1247. 
Tyrringham's  Case,  748. 
Tyson  v.  Latrobe,  618. 

V.  Post,  545. 

v.  Smith,  824. 

U. 

Udell  V.  Peak,  1005. 

Ufford  V.  Wells,  1292.  ; 


1454 


TABLE   OP   CASES. 


[BEFEKENCES   ABE   TO   PAGES.] 


Uhler  V.  Cowen,  126. 
TJhlfelder  v.  Carter,  1193. 
Ulbricht    v.    Eufaula    Water    Co., 

657,   661,   673. 
Ulery  v.  Jones,  600. 
Ulman  v.  Charles  St.  Ave.  Co.,  817. 
Ulp  V.  Campbell,  449. 
Underbill  v.  Collins,  790,  856. 

V.  Saratoga  &  W.  R.  Co.,   160, 
166. 
Underwood  v.  Campbell,  878,  921. 

V.  Curtis,    258. 
Unger  v.  Leiter,  425,  467. 

V.  Miooney,   389,  390,   1009. 
Union  College  v.  Wheeler,  1231. 
Union    Depot    St.    Ry.    &    Transfer 

Co.  V.  Brunswick,  595,  598. 
Union  Mut.   Life   Ins.  Co.   v.   Han- 
ford,  1219. 
V.  Kirchoff,  1242. 
V.  Slee,  1283. 
Union  Nat.  Bank  v.  Matthews,  1051. 
V.  Milburn,   1187. 
V.  Oium,    1094. 
Union  Pac.  Ry.  Co.  v.  Chicago,  R. 
L  &  P.  Ry.  Co.,  797. 
V.  Cook,  167,  181. 
Union  Petroleum  Co.  v.  Bliven  Pe- 
troleum Co.,  745. 
Union    Stove    &    Mach.    Works   v. 

Caswell,  1219. 
Union  Trust  Co.  v.  Weber,  1320. 
United  Land  Co.  v.  Great  Eastern 

Ry.  Co.,  720,  724,  734. 
United  Soc.  v.  Brooks,  684. 
United  States  v.  Bostwick,  100.  101, 
561,  567,  572,  573. 
V.  California    &    Oregon    Land 

Co.,  862. 
V.  Cameron,  888. 
V.  Duncan,  456. 
V.  Hoor,  1185. 

V.  Illinois  Cent.  R.  Co.,  980. 
V.  Iron    Silver    Min.    Co.,    838. 
V.  Marshall    Silver    Min.    Co., 

845. 
V.  Missouri,  845. 
v.  Morrison,  1305. 
V.  San  Jacinto  Tin  Co.,  845. 
V.  Snyder,  1321. 
United    States    Bank    v.    Benning, 
242. 
V.  Carrington,   224. 
V.  Housman,  863. 
United  States  Trust  Co.  v.  Wabash 
Western  Ry.  Co.,  110. 


University  v.  Tucker,  561,  577. 
Upham  v.  Varney,  212. 
Upington  v.  Corrington,  165,  184. 
Upshaw  V.  Upshaw,  458. 
Upson  V.  Holmes,  531. 
Upton  V.  Archer,  868,  869. 

.V.  Townend,  127-129. 
Urann  v.  Coate,  225. 
Urbana  Bank  v.  Baldwin,  1314. 
Ure  V.  Ure,  211,  213. 
Urmey  v.  Wooden,  249. 
Urquharf  v.  Brayton,  1219. 
Usher  v.  Richardson,  466. 
Usticke  V.  Bawden,  967. 
Utassy  V.  Gredlinghagen,  1158. 
Utz  V.  Utz.  1263. 


Vail  V.  Mix,  1029. 
Valentine's  Will,  In  re,  959. 
Valentine  v.  Lunt,  1155. 

V.  Penny,  742. 

V.  Piper,  1078. 

V.  Seiss,  1312. 
Vallance  v.  Blagden,  1191. 
Valley  Falls  Co.  v.  Dolan,  715. 
Valliant  v.  Dodemede,  119. 
Van  Aken  v.  Gleason,  1096. 
Van  Alstyne  v.  Van  Alstyne,  970. 
Van  Amringe  v.  Morton,  928. 
Van  Axte  v.  Fisher,  289. 
Van   Bibber  v.   Ferdinand,   389. 
Van  Brunt  v.  Flatbush,  810,  813. 

V.  Van  Brunt,  333. 
Van  Buren  v.  Olmstead,  1202. 
Van  Buskirk  v.  Van  Buskirk,  232. 
Van  Cots  v.  Heath,  1189. 
Van  Deusen  v.  Sweet,  1154. 
Van  Doren  v.  Everitt,  524. 
Van  Duyne  v.  Thayre,  435. 
Van  Duzer  v.  Van  Duzer,  499. 
Van  Epps  v.  Van  Deusen,  413. 
Van  Grutten  v.  Foscwell,  310,  313, 

314. 
Van  Horsen  v.  Benham,  1120. 
Van  Horn  v.  Clark,  701. 
Van  Home  v.  Campbell,  331,  333. 

V.  Fonda,  398,  399. 
Van  Keuren   v.   Central  R.   Co.   of 
New  Jersey,  1089. 

v.  Corkins,  1233. 
Van  Maren  v.   Johnston,  385. 
Van  Name  v.  Van  Name,  469. 
Van  Ness  v.  Hyatt,  1195. 

V.  Pacard,  548,  550. 


TABLE   OF   CASES. 


1455 


[rEFEKENCES   ABE   TO   PAGES.] 


Van  Note  v.  Downey,  411. 
Van  Ohlen  v.  Van  Ohlen,  682. 
Van  Orden  v.  Van  Orden,  453,  458. 
Van  Osdell  v.  Champion,  1137. 
Van  Pelt  v.  McGraw,  1212. 
Van  Rensselaer  v.  Ball,  184. 

V.  Bradley,   787. 

V.  Chadwick,  777,  787. 

V.  Clark,  1096. 

V.  Dennison,  782,  1171. 

V.  Hays,   29,  184,   778. 

V.  Jewett,    175,    184,    773. 

V.  Kearney,    1041. 

V.  Penniman,  855. 

V.  Plattner,    782. 

V.  Radcliff,    745,    747,    748. 

V.  Read,  782. 

V.  Wall,  162. 
Van  Thormley  v.  Peters,  1081. 
Van     Vronker    v.    Eastman,      436, 

1203. 
Van   Wagenen   v.   Brown,    1251. 
Van  Wagner  v.  Van  Nostrand,  903, 

908. 
Van   Wert  Board   of   Education  v. 

Edson,  972. 
Van  Winkle  v.  Williams,  1249. 
Van    Arsdall    v.    Fauntleroy,    487, 

488. 
Vanatta  v.  Brewer,  134. 
Vance's  Estate,  In  re,  507. 
Vance  v.  Vance,  461. 
Vandegraaff  v.   Medlock,   1209. 
Vandergrift  v.  Rediker,  588,  589. 
Vanderheyden     v.     Crandall,     212, 

299. 
Vanderslice  v.  Knapp,  1211. 
Vander  Volgen  v.  Yates,  209,  210. 
Vandweer  v.  Stickney,  1013. 
Vane    v.    Lord    Barnard,    569,    570, 

578. 
Vanhorne  v.  Dorrance,  159. 
Vanmeter  v.  McFaddin,  1285. 
Vann  v.   Marbury,   1233. 
Vansant  v.  Allmon,  1276. 

V.  Calmon,  1258. 
Vanstory  v.   Thornton,   1122,   1126, 

1133. 
Vanzant  v.  Morris,  60. 

V.  Vanzant,  505. 
Varney  v.  Stevens,  76. 
Varnum  v.  Abbott,  381,  395. 

V.  Meserve,  1269. 
Varrell  v.  Wendell,  634. 
Vartie  v.  Underwood,  467. 
Vass  V.  Freeman,  376. 


Vaughan  v.  Barclay,  221. 

V.  Dowden,  1241. 

V.  Farmer,  615. 

V.  Meyler,  790. 

V.  Swayzie,  882. 
Vaughn  v.  Lovejoy,  170. 

V.  Nims,   1260. 

V.  Vaughn,  485. 
Veazie  v.  Dwinel,  1022. 
Vechte  v.  Brownell,  800. 
Veghte    V.    Raritan    Water    Power 

Co.,  700,  736. 
Venable  v.  Beauchamp,  399,  405. 

V.  Mercantile  Trust  &  Deposit 
Co.,  622. 

V.  Wabash    Western    Ry.    Co., 
444,  467. 
Ventress  v.  Collins,  1128. 
Verac's  Estate,  In  re,  1161. 
Verdin  v.  Slocum,  1308. 
Vermont    v.    Society    for    Propaga- 
tion of  Gospel,  173. 
Vernam  v.  Smith,  97.  121,  122. 
Verner  v.    Betz,   1211. 
Vernon's  Case,  460,  462. 
Vernon  v.  Bethels,  1216. 

V.  Betz,   1213. 

V.  Smith,   112,   117. 

V.  Wright,  57. 
Verplank  v.  Sterry,  1115. 
Verrer  v.  Lors,  385. 

V.  Robinson,  441. 
Very  v.  Russell,  1268,  1276. 

V.  Watkins,  1276. 
Vetterlein  v.  Barnes,  220. 
Viall  V.  Carpenter,  732, 
Vickers  v.  Leigh,  46. 
Vicksburg  v.  Marshall,  818. 
Vidal  V.  Girard,  249. 

V.  Philadelphia.    226. 
Viele  V.   .Judson,  1233. 

V.  Osgood.  698. 
Villa  V.  Rodriguez,   1216. 
Vincent  v.  Frelich,  856. 

V.  Spooner.  463. 
Virginia  v.  State,  1249. 
Visalia  v.  Jacob.  SIS. 
Viterbo  v.  Friedlander.  102. 
Voelckner  v.  Hudson,  471. 
Vogelsang  v.  Null.  1148. 
Vogelsmeier   v.    Prendergast,    1036. 
Vogler  V.  Geiss,  735,  738. 
Volk  V.  Eldred,  826. 
Vollmer's  Appeal.  684.  693. 
Voorhis  v.  Freeman.  538.  539.  544. 
Vorhees  v.  Burchard,  686. 


1456 


TABLE  OF  CASES. 


[KEFEEENCES   ABE   TO   PAGES.] 


Vosburgh  v.  Teator,  584. 
Vossen  v.  Dautel,  1024. 
Voter  V.   Hobbs,  722. 
Vought  V.  Voiight,  929,  1146,  1147. 
Vredenbiirgh  v.  Burnet,  1230,  1231. 
Vreeland  v.  Jacobus,  467. 
V.  Schoonmaker,  416. 
Vrooman  v.  Turner,  1220. 
Vulicevich  v.  Skinner,  522. 
Vyvyan  v.  Arthur,  111,  117. 


W. 


W V.  B ,  1190. 

Wabash    Eastern    Ry.    Co.    v.    East 
Lake,     etc..     Drainage     Com'rs, 
1321. 
Wabash  &  Erie  Canal  Co.  v.  Spears, 

659. 
Waddell  v.  Rattew,  295,  326. 

V.  Waddell,  292. 

V.  Weaver,  939. 
Waddington  v.  Buzby,  952,  953. 
Wade    V.     American     Colonization 
Soc,  226. 

V.  Howard,  1237. 

V.  Jones,  1122. 

V.  Marsh,  802. 

V.  Miller,  435,  469. 

V.  Powell,  239. 

V.  Wade,   1125. 
Wadham  v.  Marlowe,  796. 
Wadleigh  v.  Janvrin,  538,  540,  544, 

546. 
Wadsworth  v.  Smith,  827. 

V.  Tillottson.  657. 

V.  Wendell,  921. 
Wafer  v.  Mocato,  187. 
Waffle  V.   New   York  Cent.   R.   Co., 

663. 
Wager  v.  Link,  1220. 
Wagner  v.  Hanna,  686. 
Wagnon  v.  Fairbanks,   1005. 
Wahl  V.  Phillips,  1276. 
Wahle  V.  Reinbach,  66B. 
Wahrmund  v.  Merritt,  1129. 
Wainscott  v.  Silvers,  573. 
Wainwright  v.  Sawyer,  307,  342. 
Wait  v.  Baldwin,  527,  529. 

V.  Maxwell,   1153. 

V.  Wait,  464. 
Waite  V.  Frisbie,  945. 
Wake  V.  Conyers,  582. 
Walden  v.  Bodley,  1099. 

V.  Conn,  93. 
Wales  V.  Bogue,  1311. 


Wales  v.  Bowdish,  644. 

V.  Mellen,  1201. 
Walke  V.  Moore,  628,  629. 
Walker's  Case,    501,   780,  785,   786» 

795,  796. 
Walker  v.  Brown,  1282. 

V.  Cronin,  667. 

V.  Deaver,  469,  906,  914. 

V.  Denent,  1229. 

v.  Doane,    510. 

V.  Elledge,  1099. 

v.  Farmers'  Bank,  1169. 

V.  Furbush,  142. 

V.  Hughes,   1006. 

V.  King,  1248. 

V.  Lewis,  300,  360. 

V.  Long,  499,  502,  1146. 

V.  McKnight,   1097. 

V.  New  Mexico  &  St.  P.  R.  Co., 
664. 

V.  Pearson,  895. 

V.  Pierce,  725. 

V.  Schuyler,  476,  477. 

V.  Sherman,   538,   546. 

V.  Stetson,  726. 

V.  Tucker,    567. 

V.  Walker,  473,  928,  1185. 

V.  Wheeler,  187. 

V.  Wilson,  903. 
Wall  V.  Bright,  267. 

V.  Hinds,   109,  548-550. 

V.  Wall,  863,   929. 
Wallace  v.   Bowen,   233. 

V.  Duffield,  232. 

v.  Fletcher,  1021,  1023,  1028. 

V.  Harmstad,  881,  935. 

V.  Harris,  505. 

V.  Kennelly,  857. 

V.  Latham,  1151. 

V.  Minor,  284. 

V.  Scoggins,  86. 

V.  Smith,   1179-1182. 
Waller  v.  Martin,  491. 

V.  Waller,  437. 
Walling  V.  Aiken,  1244. 
Wallingford  v.  Hearl,  1012. 
Wallis  V.  Hands,  857. 

V.  Harrison,  684. 

V.  Taylor,  1176. 

V.  Wallis,  961. 
Walls  V.  Atcheson,  856. 
Walmsley  v.  Milne,  547,  550. 
Walsh  V.  Byrnes,  1112. 

V.  Lonsdale,  774. 

V.  McBride,  230. 

V.  Rutgers  Fire  Ins.  Co.,  1202". 


TABLE   OF   CASES. 


1457 


[references  are  to  pages.] 


AValsh  V.  Wallinger,  640. 

V.  Wilson,  447. 

V.  Young,  1149. 
Walsingham's  Case,  195. 
Walter  v.  Dewey,  779. 

V.  Greenwood,  396. 

V.  Self.   654. 
Walters  v.  Hutchins.  566. 

V.  Jordan,  465. 

V.  People,  509,  1125. 

V.  Walters,  434,  1188. 
Walthall  V.  Goree,  382. 

V.  Rives,    1199,    1268.        .     ■ 
Walton's  Estate,  969. 
Walton  V.  Dumtra,  213. 

V.  Follansbee,  1044. 

V.  Hargroves,  1289.  1292,  1312. 

V.  Walton,  965,   906. 

V.  Wray,  554. 
Waltson  V.  Bryan,  533. 
Wanger  v.  Hippie,  1025. 
Wanmaker  v.  Van  Busuirk,  1255. 
Want  V.  Stallibras,  631,  632. 
Ward's  Will,  963. 
Ward  V.  Barrows,  633,  641. 

V.  Bartholomew,  1002,  1120. 

V.  Carp  River  Iron  Co.,  562. 

V.  Cochran,  1007,  1008. 

V.  Cooke,  1187. 

V.  De  Oca,  1220. 

V.  Fagin,   102 

V.  Fuller,  421. 

V.  Kilpatrick,   539. 

V.  Laverty,  1150. 

V.  Lewis,    934. 

v.  Lumley,  934. 

V.  Matthews,  231. 

V.  Mayfield,  511. 

V.  Patterson,  174. 

V.  Robertson,  714. 

V.  Seymour,  1248. 

V.  Ward,  379,  391,  393,  396-398, 
736,.  737. 

V.  Warren,  1021,  1027. 

V.  Wooten,  860,  863. 
Warden  v.  Watson,  517,  741,  747. 
Warden  v.  Adams,  1226. 

•  v.  Richards,  623. 
Warder  v.  Enslen,  1012. 

V.  Henry,  573. 
Wardner,  Bushnell  &  Glessner  Oo. 

V.  Elevator  Co.,  1322. 
Wardwell  v.  McDowell,  623. 
Ware  v.  Cann,  1136. 

V.  Delahaye,  1309,  1311. 

V.  Jackson,  1310. 

Real  Prop.— 92. 


Ware  v.  Lithgow,  97. 

V.  Owens,  442. 

V.  Richardson,  211,  212. 

V.  Ware,  50 L 

V.  Washington.    422,    429. 
Warfield  v.  Lindell,  389,  39ii.   1008. 
Waring  v.   Loder,   1208,  1210. 

V.  Purcell,    525. 
Warn  v.  Brown,  870. 
Warner  v.  Abbey,  533,  534. 

V.  Beach,  964. 

V.  Bennett,  104,  180. 

V.  Cashman,  688. 

V.  Connecticut    Mut.    Life    In.'^. 
Co.,   027-029. 

V.  Hale,    86,  87. 

V.  Hitchins,  573. 

V.  Rice,  1141. 

V.  Tanner,  191. 

V.  Van  Alstyne,   1289. 

V.  Warner,  960. 
Warnock  v.  Campbell.  1153. 

V.  Harlow,  1076,  1077. 
Warran   v.    Fredericks,    1002. 
Warren   v.   Baxter,    948. 

V.  Blake,  709,  710,  734,  897. 

v.  Bowdran,  1000. 

V.  Chambers,  1035,  1037. 

V.  Childs,   852. 

V.  Keokuk. &  D.  M.  I..  Co.,  590. 

V.  Lovis,    1178. 

V.  Lynch,  921,  922. 

V.  Lyons  City,  980. 

V.  Tyme,  702. 

V.  Thomaston,    890. 

V.  Twiller,  468. 

V.  Twilley,  441. 

V.  Wagner,   101.    102,    127,    129, 
136,  792,  793. 
Warrington  v.  Warrington,  380. 
Warthen  v.  Siefert,  394. 
Warwick  v.  Hunt,  1321. 
Washburn  v.  Burns,  381. 

V.  Merrills,  1180. 
Washburn  &  M.  Mfg.  Co.  v.   Salis- 
bury, 088. 
Washington  B.  E.  Ass'n  v.   Wood, 

229. 
Washington  Co.  v.  Mattoson,  582. 
Washington    Ice    Co.    v.    Shortall, 

594,    598,    599. 
Washington  Mills  Emery  Mfg.  Co. 
V.  Commercial  Fire  Ins.  Co.,  872, 
873. 
Washington    Natural    Gas    Co.    v. 
Johnson,  108,  119. 


1458 


TABLE   OF   CASES. 


[RICFKKEXCES    AKE    to    TAtlKS.] 


Wass  V.  Bucknam,  389,  487,  494. 
Wasson  v.  Davis,  1292. 
Waterbury  v.  Head,  755. 
Waterman  v.  Curtis,  120G. 

V.  Smith,   845. 

V.  Soper,   532. 
Waters'    Appeal,    1311. 
Waters  v.   Bossel,    12G7. 

V.  Bush,   845. 

V.  Crabtree,  1180. 

V.  Gooch,  483. 

V.  Groom,  1216. 

V.  Hubbard,    1258. 

V.  Lilley,   824,  825. 

V.  Margerum,  68. 

V.  Reuber,  546. 
Waterson  v.  Devoe,  1199. 
Watldns  v.  Eaton,  398,  400. 

V.  Green,  1012. 

V.  Nash,  934. 

v!  Peclv,  689,  1028. 

V.  Quarles,  335,  359. 

V.  Thornton,  494. 

V.  Tucl^er,  876. 
Watriss    v.    Cambridge    First    Nat. 

Bank.  551,  552. 
Watrous  v.  Allen,  763,  765. 

V.  Morrison,  552,  583,  1014. 
Watson    V.    Adams,    287,    308. 

V.  Billings,  1148.  1149. 

V.  Bioren,  725. 

V.  Cressey,   289,   305,   322. 

V.  Dundee    Mortgage    &    Trust 
Inv.  Co.,  1251. 

V.  Gardner,  1248,  1286. 

V.  Gray,  691.  692.  726. 

V.  Hillman,   936. 

V.  Murray,  232,  233. 

V.  O'Hern,  84. 

V.  Pipes,  947,  950,  951. 

V.  Saxer,   1133. 

V.  Smith,    288,    300,    306,    326, 
342,  1011. 

V.  Spence,  1265. 

V.  Watson,  480,  501,  860. 

V.  Wilson.  1098.  1099. 
Watt  V.  Parsons,  1090. 

V.  Trapp.  1023. 
Watters  v.  Bredin,   162. 
Wattles    V.     South    Omaha    Ice    & 

Coal  Co.,  101. 
Watts  V.  Ball,  492. 

V.  Gordon,  504. 

V.  Hawkins,  691. 

V.  Julian,  1266. 

V.  Kelson,    703.    708,    711. 


Watts  V.  Lehman,  552. 

V.   Wainewright,  3Ul,  336. 

V.  Weiman,  907. 

V.  Witt,   1013. 
Wattuppa    Reservoir    Co.    v.     Fall 

River,  596. 
Waugh  V.  Richardson,  873. 
Way  V.  Arnold,  1081. 

V.  Hooton,  998. 

V.  Mullett,    1240. 
Wayne  v.  County  v.  Miller,  977. 
Wayt  V.  Carwithen,  1282. 
Wayzata  v.  Great  Northern  Ry.  Co., 

1006. 
Wea  Gas,  Coal  &  Oil  Co.  v.  Frank- 
lin Land  Co.,  1132. 
Wead  V.   St.  Johnsbury  &  L.  C.  R. 

Co.,  665. 
Weare  v.  Van  Meter,  400. 
Wearse   v.   Peirce,    1185. 
Weatherford  v.  King,  508. 
Weaver  v.  Barden,  1094. 

v.  Demuth,  1304. 

v.  Gregg,    441,    467,    468. 

V.  Jones,    799. 

V.  Sturtevant.  469. 

V.   Wible,   401. 
Webb  V.  Archibald.  943. 

V.  Bird.   655. 

V.  Commissioners      of     Heme 
Bay,  1230. 

V.  Demopolis,  1006. 

V.  First  Baptist  Church,   492. 

V.  Hearing,   279,   290. 

V.  Hoeffer,    1271. 

V.  Hoselton,  1169,  1231. 

V.  Jiggo,  795. 

V.  Jones.  963. 

V.  Mullins.  870,  880. 

V.  Peet.  384. 

V.  Plummer,  557. 

V.  Portland  Mfg.  Co..  673. 

V.  Robbins,   1086. 

V.  Russell,   132,   754. 

V.  Sadler,   312. 

V.  Townsend,  427. 
Webber  v.  Closson.  588. 

V.  Gage,  730. 

V.  Pere    Marquette    Boom    Co., 
596. 

V.  Ramsey,  1212. 
Weber  v.  Anderson,  912,  913. 

V.  Short,   511. 

V.  Shortt,  508. 
Webster  v.  Calden,  1196. 

V.  Calef,  392. 


TABLE   OF   CASES. 


145<^ 


[UEl'EKENCES   ABE   TO   PAGES.] 


Webster  v.  Clear,  844. 

V.  Cooper,  205. 

V.  Dundee    Mortgage    &    Trust 
Co.,  1130. 

V.  Ellsworth,    492. 

V.  Gilman,  77. 

V.  Kings     County     Trust    Co.. 
932, 

V.  Lowell,   1023,   1025,   1027. 

V.  Morris,  251. 

V.  Nichols,  117,  178. 

V.  Parker,  14. 

V.  Peet,  565,  1211. 

V.  Potter,  S83. 

V.  Vandeventer,   37(J,  401. 

V.  Webster,  322. 

V.  Wiggin,   362-364. 

V.  Yorty.    958. 
Wedge  V.  Moore,  435,  443,  446. 
Weed  V.  Keenan,  688. 

V.  Lindsay,  90,  139. 
Weehawken  Ferry   v.   Sisson,   277, 

288. 
Weems  v.  Weems,  416. 
Weeping  Water  v.  Reed,  977. 
Wehn  V.  Fall,  265. 
Wehrle  v.  Wehrle,  511. 
Weichselbaum  v.  Curlett,  124. 
Weigmann  v.  Jones,  687,  728. 
Weimar  v.  Fath,  623,  625. 
Weir  V.  Smith,  627,  628. 

V.  Tate,  317,  428,  429,  438. 
Weis  V.  Meyer,  732. 
Weisbrod  v.  Chicago  &  N.  W.  Ry. 

Co..  587,  1145. 
Weise  v.  Smith,  828. 
Weiser  v.  Weiser,  404. 
Weisinger  v.  Murphy.  500. 
Weiss    V.    South    Bethlehem,    973, 

974. 
Welcden  v.  Elkington.  338,  339. 
Welch  V.  Buckins.  425. 

V.  Bunce,  1150. 

V.  Button.  861. 

V.  Priest,  1226. 

V.  Sackett,  936. 

V.  Wilcox,   729. 
Welcome  v.  Hess,  853,  856. 

V.  Upton,  742. 
Weld  V.  Sabin,  1205,  1248. 
Weldon  v.  Tolman,  1235. 
Wellborn  v.  Weaver,  1003. 

V.  Williams,  1290. 
Weller  v.  Noffisinger,  1138,  1141. 
Welles  V.  Bailey,  595,  1035. 
V.  Cowles.  13. 


Wellesley   v.   Mornington,   638. 
Wellington  v.  Janvriu,  1140. 
Welliver    v.    Jones,    288. 
Wells,   In  re,   954. 

V.  Batts,  416. 

V.  Beal,   588,   589. 

V.  Beall,  481. 

V.  Bransforde   415. 

V.  Caywood,  1146. 

V.  Chapman,  401. 

V.  Garbatt,  712. 

V.  Jackson   Iron   Mfg.   Co.,  889. 

V.  Kingston-upon-HuU,    679. 

V.  Lewis,   623. 

V.  McCall,  1138. 

V.  Morrow,  1094. 

V.  Rice,  1261. 

V.  Seeley,   260. 

V.  Seixas,  1151. 

V.  Sheerer,  134. 

V.  Smith,  188. 

V.  Steckelberg,  1041. 

V.  Thompson,  489,  498. 

V.  Van  Dyke,  1207. 

V.  Wells,    1147,   1263. 
Welsh  V.  Foster,  321. 

V.  Phillips,   1168,   1226,    1229. 

V.  Sackett,   1176. 

V.  Taylor,  736. 

V.  Woodbury,  289. 
Welton   V.   Poynter,  585. 
Wendell  v.  Crandall,  57. 
Went      V.      Methodist      Protestant 

Church,    699,    700. 
Wentworth  v.  Miller,  534. 

V.  Portsmouth  &  D.  R.  Co.,  533. 

V.  Tibbetts,    1120. 

V.  Wentworth,  233,  472. 
Wentz's  Appeal,  610. 
Were  v.  Cole.  272. 
Werner  v.  Ropiquet,  802. 
Wernway  v.  Brown,  1260. 
Wertheimer      v.      Wavne      Circuit 

Judge,   117. 
Wescott  V.  Binford,  315. 
West  V.   Berney,  641,   643. 

V.  Biscoe,  185. 

V.  Fitz,  47. 

V.  Lassels,  785. 

V.  McKinney,   1018. 

V.  McMullen,  508,  509. 

V.  Moore,  526. 

V.  Reed,  1216. 

V.  St.  Louis,  K.  C.  &  N.  Ry.  Co., 
586. 

V.  Warde.  1128. 


1460 


TABLE   OF   CASES. 


[BEFEEENCES    ABE   TO   PAGES.] 


West  V.  Weyer,  393. 
West  Chicago  Park  Com'rs  v.  West- 
ern Union  Telegraph  Co.,  821. 
West  Coast  Lumber  Co.  v.  Newkirk, 

1300. 
West  Co.  V.  Lea,  1118. 
West  Covington  v.  Treking,  809. 
West  Point  School  District  v.  Wer- 
ner, 1306. 
West  Roxbury  v.  Stoddard,  599,  825. 
West  Virginia   Transportation   Co. 
V.  Ohio  River  Pipe  Line,  753,  765. 
Westbrook  v.   Gleason,   1081,    1095, 
1234. 
V.  Vanderburg,   458. 
Westchester  Fire   Ins.   Co.   v.  Fos- 
ter, 1210. 
Westcott  v.  Cady,  375,  377. 
V.  Campbell,  476. 
v.  Middleton,  650. 
Western   Granite  &  Marble  Co.   v. 

Knickerbocker,  651,  1031. 
Western   North  Carolina  R.  Co.  v. 

Deal,  543. 
Western    Ry.    v.    Alabama    Grand 

Trunk  R.  Co.,  810,  811. 
Western    Railway    of    Alabama    v. 

Alabama  G.  T.  R.  Co.,  979. 
Western  Transp.  Co.  v.  Lansing,  92. 
Western    Union    Telegraph    Co.    v. 

Williams,  812. 
Westgate  v.  Carr,  589. 

v.  Wixon,  545. 
Westmoreland    &    C.    Natural    Gas 

Co.  V.  De  Witt,  519. 
Weston  V.  Arnold,  693. 
V.  Foster,  159. 
V.  Goddard,    406. 
V.  Sampson,  602,  826. 
Westropp  V.  Elligott,  567. 
Wetherbee  v.  Bennett,  914. 
V.  Dunn,  582,  1099. 
v.  Ellison,   555,  556. 
V.  Wilson,  557. 
Wetherill  v.  Hough,  260,  261. 
Wetmore  v.  Bruce,  702. 
V.  Parker,   960,   961. 
Wetz  V.  Beard,  1134. 
Wetzell  V.  Richcreek,  900. 
Weybright  v.  Powell,  329. 
Whaley  v.  Jarrett,  729,  1026. 
V.  Laing,  678. 

V.  Stevens,    685,    686,    1027. 
V.  Whaley,  231,  1011. 
Whalin  v.  White,  123. 
Wharton  v.  Moore,  553,  1173. 


Wharton  v.  Naylor,  803. 

V.  Wilson,  1312. 
Wheat  V.  Morris,  402. 
Wheatland  v.  Dodge,  61. 
Wheatley  v.   Baugh,   665,   667,   668, 
1030. 

v.  Calhoun,  388,  425. 

V.  Chrisman,  657. 
Wheaton  v.  Andress,  50. 

V.  East,    1151. 

v.  Gates,  697,  698. 

V.  Neville,  1316. 
Wheeldon  v.  Burrows,  707,  711,  712. 

V.  Paul,    175. 
Wheeler's  Appeal,   245. 
Wheeler  v.  Becker,  1174. 

V.  Bedford,  730. 

V.  Clark,  1027. 

V.  Clutterbuck,  990. 

V.  Dascomb,  163. 

V.  Duke,  62, 

V.  Earle,   120. 

V.  Factors'  &  Traders'  Ins.  Co., 
1208. 

V.  Frankenthal,  86. 

V.  Hotchkiss,  497. 

V.  Jennings,  416. 

V.  Kidder,  232. 

V.  Kirkland,   231,  467. 

V.  Montefiore,   90. 

V.  Northern    Colorado    Irriga- 
tion Co.,  662. 

V.  Schad,  754,  756. 

V.  Sohier,  917. 

V.  Taylor,  401. 

V.  West,    680,    746. 

V.  Wheeler,   964. 

V.  Wilder,  736. 

V.  Winn,  1007. 
Wheelock  v.  Cavitt,  926. 

V.  Warschauer,   135. 
Wheelwright  v.  W.,  933. 
Wheless  v.  Wheless,  257,  258. 
Whetstone  v.  Bury,  217. 

V.  Coffey,  505. 
Whipple  V.  Foot,  528. 
Whitaker  v.  Brown,  517,  873,   875. 

V.  Forbes,  797. 

V.  Greer,    480. 

V.  Hawley,  136,  775. 
Whitbeck  v.  Cook,  903. 
Whitby  V.  Mitchell,   303,  608. 
Whitcomb  v.  Dutton,  585. 

V.  Provost.   1323. 

v.  Taylor,  64. 
White's  Appeal,  550. 


TABLE   OF   CASES. 


1461 


[BEFERENCES   ABE  TO   PAGES.] 


White' 
White' 
White 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


s  Estate,  778. 

's  Will,  In  re,  958. 

V.  Barford,  964. 

Bass,  711. 

Bogart,  1306. 

Bradley,  687,  706,  978. 

Brown,  1210. 

Burnley,  1007. 

Campbell,  273. 

Casten,  958. 

Chapin,  689,  1030,  1031. 

Clarke,  471. 

Clawson,   1004. 

Crawford,  45. 

Cutler,  565,  578. 

Denman,  1312. 

Downs,  1290. 

Drew,  437. 

Eagle  &  Phoenix  Hotel  Co., 
719,   725. 

East  Lake  Land  Co.,  656. 

Espey,  1306. 

Foster,  529-531. 

Gay,   887. 

Godfrey,  893. 

Griffing,  110. 

Holland,  86. 

Holman,  1267. 

Hooper,  265. 

Hopkins,   322. 

Hunt,  110. 

Institute  of  Technology,  644. 

Kauffman,  1281. 

King,  530,  683. 

Luning,  888. 

McCann,   573. 

McPheeters,  308. 

Manhattan  Ry.  Co.,  739. 

Maynard,   680. 

Miller,  1298.  1299. 

New  York  &  N.    E.   R.  Co., 
875,   876. 

Northwestern    North    Caro- 
lina R.  Co.,  812-815. 

Parker,  212. 

Patten,  1080. 

Pickering's  Lessee,  402. 

Polleys,  1250. 

Rittenmyer,  1194,  1264,  1266. 

Sayre,  395. 

Smith,  821,  977. 

Spreckels,  583. 

Stuart,  393. 

Trustees  of  British  Museum, 
947. 

Wager,  1145. 


White  V.  Wagner,  572. 

V.  Wheelan,   1129. 

V.  White,  450,  454,  455,  544. 

V.  Whitney,  1194,  1204. 

V.  Wiley,   816,   1033. 

V.  Williams,   888,   1290. 
White's   Bank  of   Buffalo   v.    Nich- 
ols, 893,  895,  896. 
Whiteacre  v.  Rector,  1130. 
Whitehead  v.  Bennett,  550. 

V.  Conklin,  510. 

V.  Morrill,  1228,  1229. 

V.  Nicholson,   1123. 

V.  Nickelson,  1124. 

V.  Parks,  689,  718. 

V.  Woodruff,    1318. 
Whitehouse  v.  Cummings,  714,  715, 

732. 
Whiteley  v.  Davis,  922. 
Whiteman  v.  Field,  505. 
Whitesides  v.  Cooper,  284,  286,  307. 

V.  Whitesides,    159. 
Whitfield  V.  Brevit,  578. 

V.  Harris,  932. 

V.  Riddle,   1095. 

V.  Weedon,  570. 
Whiting  V.  Edmunds,  1010,  1011. 

V.  Gaylord,  706,  707,  1026,  1032. 

V.  Ohlert,  86. 

V.  Pittsburgh  Opera  House  Co., 
86. 

V.  Taylor,  1010. 
Whitmarsh  v.  Cutting,  524. 

V.  Walker,  548. 
Whitmire  v.  Wright,  429. 
Whitmore  v.   Orono  Pulp  &  Paper 
Co.,  103. 

V.  Poindexter,  1322. 

V.  Tatum,  1195. 
Whitney,   In  re,  946. 

V.  Allaire,  91,  92. 

V.  Bartholomew,  652. 

V.  Hale,  1176. 

V.  Lee,  724. 

V.  Olney,  883,  897. 

V.  Richardson,  701. 

V.  Wheeler  Cotton  Mills,  1028. 

V.  Whitney,  336,  440. 
Whittaker  v.  Lindley,  426. 

V.  Pendola,  844. 

V.  Southwest       Virginia       Im- 
provement Co.,  1153. 
Whittemore  v.  Gibbs.  1194. 
Whitten  v.  Whitten,  406. 
Whittenton  v.  Staples,  764. 
Whittier  v.  Vaughan,  1316. 

v.  Winkley,  721. 


1402 


TABLE   OF    CASES. 


[references    ABE   TO   PAGES.] 


Whittington  v.  Flint,  1012,  1256. 

V.  Simmons,  1311. 
Whittle  V.  Samuels,  -508. 
Whitton    V.    Whitton,    174,    395. 
Whitwell,  Ex  parte,  650. 

V.  Harris,  182. 
Whitworth  v.  Lyons,  1133. 
Whyddon's  Case,  934. 
Whyte  V.  Arthur,  246. 

V.  Builders'     League     of     New 
York,  713. 

V.  Nashville,  484. 
Wickersham  v.  Orr,  702. 

V.  Savage,  619. 
Wickham  v.  Berry,  240. 

V.  Hawker,  684,  685.  704,  874. 
Wickman  v.  Robinson,  1295. 
Widdicombe  v.   Childers,  845. 
Wieland   v.    Kobick,   1148. 
Wieters  v.  Timmons,  247. 
Wigan  V.  Jones,  611. 
Wigg  V.    Wigg.    243. 
Wiggin  v.  Baptist  Soc,   695. 

v.  Heywood,  1195. 
Wiggins  V.  Chance,  1134. 

V.  Lusk,  936. 
Wiggins    Ferry    Co.   v.    Ohio    &    M. 

Ry.   Co.,   543,   757. 
Wigglesworth  v.  Dallison,  524. 
Wight   V.   Gray.   550. 
Wightman  v.  Reynolds,  1044. 

V.  Spofford,  862. 
Wilber  v.  Wilber,  449. 
Wilbourn  v.  Shell,  960. 
Wilbur   V.   Almy,    624. 

V.  Spofford,    614. 
Wilcox  V.  Cate,  573. 

V.  Hines,    102. 

V.  Jackson,  843. 

V.  Leonmister       Nat.        Bank, 
1313. 

V.  Musche,  914. 

V.  Raddin,   153. 

V.  Randall,  428. 

V.  Wheeler,  46,  47,  204. 
Wilcoxon  V.  Miller.  1313. 
Wild's   Case.   60. 
Wilder  v.   Brooks,   1078,  1146. 

V.  Ranney,   623. 

V.  St.  Paul,  737,  978. 
Wiles  V.  Wiles,  413. 
Wiley  V.  Ewing,  1265. 

V.  Williamson.    1234. 
Wilford's  Estate,  In  re,  373. 
Wilke   V.   Wilke.   934. 
Wilkes   V.   Holmes,   636. 


Wilkesbarre    v.    Wyoming    Histori- 
cal Society,  46. 
Wilkins  v.  Bevier,  1090. 

V.  French,  1194,  1196. 

V.  Irvine,  680. 

V.  Jewett,  693. 

V.  McGe,hee,  1269. 

V.  Young,  373. 
Wilkinson  v.  Buist,  641,   648. 

V.  Flowers,    1255,   1256. 

V.  Getty,  938,  939. 

V.  Haygarth,  580. 

V.  Merrill,  1123. 

V.   Proud,   516,   745. 

V.  Scott,  878. 

V.  Stuart,  406. 

V.  Tranmer,  320,  321,  862,  863. 

V.  Wilkinson,  169,  664,  565. 
Wilks  V.  Burns,  640. 
Willamette  Real-Estate  Co.  v.  Hen- 

drix,  1018. 
Willard  v.  Harvey,  1236. 

V.  Tillman,  111,  781. 

V.  Twitchell,  104. 
Wiltet  V.  Beatty,  473. 

V.  Brown,   442. 
Willey  V.  Norfolk  Southern  R.  Co., 
735,  736. 

V.  Portsmouth,  1033. 

V.  Thwing,  714. 
William    Deering  &   Co.    v.    Beard, 

509. 
William  &  Anthony  Streets,  In  re, 

445. 
Williams'   Case,   260. 
Williams  v.  Angell,  296. 

V.  Baker,  1036. 

V.  Bennett,  1120. 

V.  Bosanquet,   107,   1197. 

V.  Burrell,  95. 

V.  Chicago,  S.  F.  &  C.  Ry.  Co., 
1301. 

V.  Cincinnati  First  Presby- 
terian Soc,  193,  972,  980, 
1009,  1010. 

V.  Cox,  428. 

V.  Dakin,   177. 

V.  Day,  569. 

V.  Deriar,  145. 

V.  Dorris,  1124. 

V.  Earle,  106,  117. 

V.  Esten,  306. 

V.  Evans,  1119. 

V.  First  Presbyterian  Soc.  in 
Cincinnati,  193,  972,  980, 
1009.  1010. 


TABLE    OF    CASES. 


1463 


[beferences  are  to  pages.] 


Williams  v.  Fitchi,  234. 

V.  Gibsou,  741. 

V.  Haddock,  264. 

V.  Hassell,  267. 

V.  Hay,  690. 

V.  Hayward,  780.  796. 

V.  Herrick.   1139. 

V.  Hilton.  1184,  1206,  1264. 

V.  Hollingsworth,  229. 

V.  Hyde.  530. 

V.  James,   718.   719,   723.   724. 

V.  Jones,   1136. 

V.  Kierney,  434. 

V.  Ladew,  149,  152. 

V.  Lambe,  446. 

V.  McAliley,   1001. 

V.  McConico,  213. 

V.  Mayfield,  889. 

V.  Michigan   Cent.   R.   Co.,   589. 

V.  Milwaukee  Industrial  Expo- 
sition Ass'n,  980. 

V.  Morland,  673. 

V.  Morrison,  746. 

V.  Neff.  955. 

V.  Nellor,  1318. 

V.  Nelson,  688,  1029. 

V.  New  Orleans.  M.  &  T.  R.  Co., 
1072. 

V.  New    York    Cent.    Ry.    Co., 
811. 

V.  Otey,  245. 

V.  Paine,  1145. 

V.  Reggan,  1183. 

V.  Roger     Williams     Ins.     Co., 
1209. 

V.  Safford.   721,  816. 

V.  Scott,  1000. 

V.  Shackleford.  1161. 

V.  Tatnall,   1313. 

V.  Teachey,   1226,   1229. 

V.  Terrell.  1266. 

V.  Townsend,   1199. 

V.  Vanderbilt,     109,     163,     175. 
186,   553,   1300. 

V.  Veach,  613. 

V.  Wager,  231. 

V.  Wait,  125. 

V.  Wallace,  1007. 

V.  Walters,  213. 

V.  Washington.  1272. 

V.  Watkins,  1132. 

V.  Wiley,  973. 

V.  Williams,  469,  31. 
Williamsburg  Boom  Co.   v.   Smith, 

890. 
Williamson  v.  Berry,  1261. 


Williamson    v.    Brown,    1085,    1().S6, 
1088,  1090. 

V.  Carskadden,   926. 

V.  Crossett,  856. 

V.  Jones,  519,  562,  577,  578. 

V.  Michigan    F.  &  M.  Ins.  Co., 
1208. 

V.  New  Jersey  Southern  R.  Co., 
538,  540,  547. 

V.  Russell,  1113. 

V.  Stone,  1275. 

V.  Suydam.  245. 

V.  Williamson,  284,  913. 

V.  Yager.  223,  413. 
Williard    v.    Williard,    566,    576. 
Willington  v.  Gale,  1194. 
Willis   V.   Bucher,   64,   278. 

V.  Gattman,  920. 

V.  Martin,  289,   291,   295. 

V.  Moore,   527,   528. 

V.  Smith.  618. 
Willison  V.   Douglas,  1304. 

V.  Watkins,    134.   141,   1010. 
Willoughby  v.  Laurence,  686,  701. 
Wills  V.  Cowper,  622. 
Willson  V.  Burton,  1218,   1249. 

V.  Willson,    912,    914. 
Wilmarth   v.    Bancroft,    1211. 

V.  Bridges,  438. 
Wilmington    Water    Power    Co.    v. 

Evans,  681,  701. 
Wilmot  V.  Lathrop,  400. 

V.  Wilmot,  336. 
Wilms  V.  Jess,  670,  672.  690. 
Wilson's  Appeal,  1318. 
Wilson  V.  Albert.  862. 

V.  Alston.  316. 

V.  Anderson.  246. 

V.  Arentz,   499. 

V.  Atkinson,  1016. 

V.  Beckwith,  897. 

V.  Blake.  1007. 

V.  Boyce.   1176. 

V.   Branch.  1151. 

V.  Brown.   1249. 

V.  Chalfant,  681,  701. 

V.  Cochran,  905,  911.   1123. 

V.   Duguid,   639,   640. 

V.  Edmonds.  74,  571. 

V.  P'orbes,  903. 

V.  Gait,   173. 

V.  Hart,  763.  766. 

V.  Hatton,  99. 

V.  Hayward,  1228. 

V.   Hunter.  883.  1014. 
V.  Inloes.  26,  881. 


1464 


TABLE   OF   CASES. 


[references   ABE   TO   PAGES.] 


Wilson  V.  Johnson,  881. 

V.  Jones,    187. 

V.  King,  1175. 

V.  Lyon,   1291. 

V.  McEwan,  1018. 

V.  Maltby,  1212. 

V.  Martin,  680. 

V.  Maryland  Life  Ins.  Co.,  618, 
626. 

V.  Mason,  619,  623. 

v;  Nance,  1120. 

V.  New  Bedford,  666. 

V.  Pennock,  621. 

V.  Piggott,  617. 

V.  Russell,  1184,  1186. 

V.  Shiveley,   1035. 

V.  Shochberger,    1177. 

V.  Taylor,   1322. 

V.  Troup,  1078,  1270. 

V.  Widenham,   900. 

V.  Wilson,  173,  382. 
Wilson   Sewing  Mach.   Co.   v.   Rut- 
ledge,  1260. 
Wilt  V.  Franklin,  1110. 
Wilton  V.  Mayberry,  1249. 
Wiltshear  v.  Cottrell,  539. 
Wiltshire  v.   Sidford,   691. 
Wimbledon     &     Putney    Commons 
Conservators  v.  Bixon,  723,  724. 
Wimple  V.  Fonda,  305. 
Winans  v.  Cheney,  889. 
Winant  v.  Hines,  855,  856. 
Winchester  v.  Charter,  1111,  1112. 

V.  Hees,  883. 

V.  Osborne,  688. 

V.  Paine,  1240. 
Windham  v.  Chetwynd,  949. 
Windham    County    Sav.    Banla    y. 

Hines,  1258. 
Windsor  v.  Collinson,  858. 

V.  Evans,  1222. 
Wineland's  Appeal,  946. 
Winfield  v.  Henning,  767. 
Wing  V.  Chase,  922. 

V.  Gray,  567. 
Wingerter  v.  Wingerter.  1059. 
Wingrove  v.  Wingrove,>  952. 
Winham  v.   McGuire,   735. 
Winkler  v.  Miller,  1092. 
Winn  v.  Abeles,  671,  1014. 
V.  Rutland,  665. 
V.  State,  161. 
Winnepesaukee      Camp      Meeting 

Ass'n  v.  Gordon,  186. 
Winnipiseogee  Lake  Co.  v.  Young, 
688,    1025. 


Winnipiseogee  Paper  Co.  v.  Eaton, 

913. 
Winona  v.  Huff,  979. 
Winona  &  St.  P.  R.  Co.  v.  Barney, 

835. 
Winship  v.  Pitts,  578. 
Winslow   V.   Cooper,   1048. 

V.  Goodwin,  307,  342. 

V.  Henry,  774. 

V.  Kimball,  949. 

V.  King,   897. 

V.  Merchants'     Ins.     Co.,     539, 
546,  547,  1173. 

V.  Newell,    1002. 

V.  Patten,  890. 
Winsor  v.  Mills,  346,  355,  1136. 

V.  Pratt,  960. 
Winsted    Sav.     Bank    &    Building 
Ass'n  V.  Spencer,  924. 

v.  Burnell,  1179,  1180. 

V.  Franklin   Academy,    121. 

V.  Jones,  615. 
Winter,  In  re,  337. 

V.  Anson,  1291. 

V.  Brockwell,  738,  739. 

V.  Gorsuch,    870. 

V.  Payne,  895. 

V.  Ritchie,  1132. 
Winterbottom  v.  Pattison,  937. 
Winters  v.  Franklin  Bank,  1228. 
Winthrop    v.    Fairbanks,    704,    874, 

876. 
Winthrop   School   District  v.   Ben- 
son,   998. 
Wisconsin  Cent.  R.  Co.  v.  Wiscon- 
sin River  Land  Co.,  1274. 
Wiscot's  Case,  374. 
Wisdom  V.  Reeves,  920. 
Wise  V.  Fuller,  1220. 

V.  Tripp,   1317. 

V.  Wheeler,  883. 
Wiseman  v.  Eastman,  685. 

V.  Lucksinger,    678,    681,    682, 
1026,  1027. 
Wiser  v.  Lockwood,  420. 
Wissler  v.   Hershey,   739. 
Wistar  v.  Scott,  61. 
Witczinski  v.  Everman,  1186,  1187. 
Witham  v.  Brooner,  207,  216,  849. 
Withers  v.  Atkinson,  881. 

V.  Jenkins,  490,  492. 

V.  Larrabee,  137,  138. 

V.  Yeadon,  612. 
nitherspoon  v.  Duncan,  843. 
Withnell  v.  Courtland  Wagon  Co., 

1312. 
Withy  V.  Mumford,  917. 


TABLE   OF   CASES. 


1465 


[kKKEKEACES   ABE  TO   PAGES.] 


Witmer's  Appeal,  547,  1306. 
Witter  V.  Harvey,  S97. 
Witty  V.  Hightower,  911. 

V.  Matthews,  102. 
Wixom's  Estate,  In  re,  508. 
Woehler  v.  Endter,  12G1. 
Wolcott  V.  Melick,  654. 
Wolf  V.  Bolliner,  960. 
V.  Brass,    717. 
V.  Dozer,  86. 
V.  Hines,  623. 
V.  Ogden,   512. 
Wolfe  V.  Buckley,  1122. 
V.  Dowell,  1275. 
V.  McGuire,  573. 

V.  Scarborough,  582. 

V.  Sullivan,    818. 

V.  Van  Nostrand,   326. 
Wolfer  V.  Hemmer,  331,  332. 
Wolff  V.  Fleischacker,  1128. 
Wolffe  V.  Wolff,  15G,  856. 
Wolford  V.  Morgenthal,  59. 
Wollman  v.  Ruehle,  585. 
Wolsey  v.  Chapman,  835. 
Womack  v.  McQuarry,  136. 
Womble  v.  Battle,  1287. 
Women's  Union  Missionary  Soc.  v 

Mead,  943. 
Wommack  v.  Whitmore,   332. 
Womrath  v.  McCormick,  290. 
Wonson  v.  Wonson,  1038. 
Wood,  In  re,  352,  648. 
Wood's  Appeal,  1083. 
Wood  v.  Augustine,  1256. 

V.  Boyd,  46,  867. 

V.  Chapin,  860,  878,  1077. 

V.  Cooper,  764. 

V.  Fleet,  403. 

V.  Fowler,  594,  598,  599. 

V.  Goodwin,   1241. 

V.  Griffin,    356,    572. 

V.  Hammond,  616,  1158. 

V.  Holly  Mfg.  Co.,  543. 

V.  Hurd,  975. 

V.  Keyes,  262,  474. 

V.  Kice,  57,  618. 

V.  Leadbitter,  678-683,  7i)0,  920. 

V.  Lee,  474. 

V.  McGuire,   335. 

V.  Manley,  683. 

V.  Michigan   Air    Line    R.    Co.. 
681. 

V.  National   Water  Works   Co., 
813. 


Wood  V.  Pitman,  843. 
V.  Rabe,  235. 
V.  Rayburn,  1088. 
V.  Reeves,  260. 
V.  Reynolds,  1307. 
V.  Robertson,  283. 
V.  Saunders,  689,  719,  724. 
V.  Smith,  1263. 
V.  Sugg,   406. 
V.  Trask,  1228. 
V.  Wand,  658,  1030. 
V.  Waugh,  688. 
V.  Weir,    1315. 
V.  Whelen,  547. 
V.  Wood,  414,  456,  464. 
Wood     County     Petroleum    Co.    v. 

West  Virginia  Transp.  Co.,  519. 
Woodall  V.  Kelly,  1290,  1292. 
Woodbridge  v.    Proprietors   of  Ad- 
dison, 823. 
v.  Winslow,  646. 
Woodbridge  Co.  v.  Charles  E.  Hires 

Co.,  191. 
Woodburn's  Estate,  456,  778.  ' 
Woodbury  v.  Allegheny  &  K.  R.  Co., 
880. 
v.  Fisher,  936,  1217. 
v.  Swan,   1217. 
V.  Warren,  1125. 
Woodcock  V.  Estey,  872. 

V.  Woodcock,  339. 
Woodfill  V.  Patton,  958. 
Woodgate  v.  Fleet,  111. 
Woodhull   V.   Longstreet,   403. 

V.  Rosenthal,  897. 
Woodlee  v.  Burch,  1199. 
Woodman  v.   Pitman,  599. 
V.  Spencer,  894. 
V.  Woodman,  277,  289,  305. 
Woodruff  V.  Adams,  537. 
V.  Depue,    1264. 
V.  Erie  Ry.  Co.,  123. 
V.  Neal,  809. 
V.  North      Bloomfield      Gravel 

Min.  Co.,  1022. 
v.  Paddock,  737. 
V.  Pleasants,  348,  349. 
v.  Trenton    Water    Power    Co., 
160. 
Woods  V.  Garnett.  1096. 

V.  Hildebrand,  880,  1169.   1197. 
V.  Mains,  1305. 
V.  North,  902. 
V.  Wallace,  436. 
V.  Woods.   1230. 
Woodson  V.  Collins,  1088,  1089. 


1466 


TABLE   OF   CASES. 


[references   ABE   TO   PAGES.] 


Woodward   v.   Brown,   1084. 

V.  Cone,  175. 

V.  Gates,   575. 

V.  Jewell,  619. 

V.  Leaver,  866. 

V.  Sartwell,  1092,  1317. 

V.  Seely,   679. 

V.  Walling,  163. 
Woodyear  v.  Schatfer,  658,  1022. 
Wooldridge  v.  Wilkins.  442,  443. 
Woolery  v.  Grayson,  1261. 
Wooley  V.  Groton,  883. 

V.  Schrader,  393. 
Wooliscroft  V.  Norton,  753,  758. 
Woonsocket     Sav.     Institution     v. 

American  Worsted  Co.,  1271. 
Wooster  v.  Cooper,  626,  630,  641. 

V.  Fitzgerald,    626. 

V.  Page,  1134. 
Wooten  V.   Steele,   1111. 
Worcester  v.  Eaton,  1149. 
Worcester   Nat.    Bank    v.   Cheeney, 

1017,  1248. 
Word  V.  Box,  1017. 
Worden's   Appeal,    76. 
Work  V.  Hall,  1301. 
Workman  v.  Guthrie,  390,  391. 

V.  Mifflin,  126. 
Wormley  v.  Wormley.  243. 
Worrall  v.  Munn,  934. 

V.  Rhodes,  1027. 
Worrell  v.   Forsyth,   462. 
Worsham  v.  Callison,  433.  434. 
Worthen  v.  Pearson,  453. 

V.  Ratcliffe,  187. 
Worthington  v.  Cooke,  781,  785. 

V.  Gimson,    703,    707,    708. 

V.  Hiss,  397. 

V.  Middleton,  450. 

V.  Staunton,  394. 

V.  Wade,  973. 
Wotton  V.  Wise,  568. 
Wragg  V  Comptroller  General,  1287. 

V.  Denham,  1214. 
Wray   v.    Steele,    232. 
Wren  v.   Wren,   384. 
Wright  V.  Bates,  1181. 

V.  Briggs,  1218. 

V.  Brown,  342. 

V.  Burroughes,  120,  272. 

V.  Carter,  820. 

V.  Cartwright,  338. 

V.  Denn,  49,  50,  1280. 

V.  Dunn.    623. 

V.  Henderson,  1169. 

V.  Howard,  673,  688. 

V.  Jennings,  475. 

V.  Lake,  1211. 


Wright  V.  Lancaster.  867. 

V.  Mattison,   1016. 

V.  Minshall,  267. 

V.  Moore,   722. 

V.  Nipple,   912. 

V.  Pearson,  239,   312. 

V.  Roseberry.  843,  844. 

V.  Saddler,  1158. 

V.  Sperry,   401. 

V.  Tukey,  973,  978. 

V.  Wakeford,  626. 

V.  Watson,  525. 

V.  Westheimer,  1131. 

V.  Williams,  689. 

V.  Wright,    45,    263,    342,    412, 
617. 
Wronkow  v.  Oakley,  1145. 
Wuester  v.  Folin,  935. 
Wunder  v.  McLean,  104. 
Wunderle  v.  Wunderle,  1158-1160. 
Wunderlin  v.  Cadogan,  867. 
Wurts  V.  Page,  258. 
Wyant  v.  Lesher,  1191. 
Wyatt  V.  Harrison,  668,  670. 

V.  Simpson,  411. 

V.   Stewart,  1313. 
Wyckoff   V.    Gardner,   381. 

V.  Wyckoff,  1281. 
Wylly  V.  Screven,   1185. 
Wyman   v.   Ballard,   904,   915. 

V.  Brown,  282,  320,  321,  1112. 

V.  Oliver,  428. 
Wyndham  v.  Carew,  168. 
Wynkoop  v.  Bueger,  725. 

V.  Cowing,   1215. 
Wynn  v.  Garland,  681. 
Wynne  v.  Small,  926. 

X. 

Xenos  V.  Wickham,  928.  929,  935. 

Y. 

Yackle  v.  Wightman,  1308. 
Yale  V.  Flanders,  923. 
Yancey  v.   Savannah  &  W.  R.  Co., 
176. 

V.  Tatlock,  908. 
Yard's  Appeal,  251. 
Yard  v.  Ford,  1020. 
Yardley  v.  Cuthbertson.  953. 
Yates  V.  McKibben,  1126. 

v.  Milwaukee,  597. 

V.  Warrenton,    817. 
Yeager  v.  Weaver,  91. 


TABLE   OF   CASES. 


1467 


[kefekences  are  to  pages.] 


Yeap  Cheap  Neo  v.  Ong  Cheng  Neo, 

362,  1139. 
Yearly  v.  Long,  1281. 
Yearworth  v.  Pierce,  557. 
Yeates  v.  Briggs,  509. 
Yeaton  v.  Roberts,  305. 
Yellowly  v.  Gower,  571. 
Yeo  V.  Mercereau,  433. 
Yerex  v.    Eineder,   665. 
Yetzer  v.  Thoman,  1014. 
Yocum  V.  Zahner,  575. 
Yoe  V.  Hanvey,  508,  1122. 

V.  McCord,  952. 
Yolo  County  v.  Sacramento,  827. 
Yonkers,    In    re,    813. 
York  V.  Stone,  373. 

V.  Welsh,  445. 
York  Bank's  Appeal,  1307. 
Youghiogheny    River    Coal    Co.    v. 

Pierce,  742. 
Youle  V.  Jones,  321. 

V.  Richards,  1110,  1213. 
Young's   Estate,    380. 
Young's  Petition,  872,  874. 
Young  V.  Adams,  389. 

V.  Bankier  Distillery  Co.,  658. 

V.  Boardman,  457. 

V.  Bradley,  248. 

V.  Cosgrove,  886. 

V.  Dake,  86.  90,  92. 

V.  De  Bruhl,  375. 

V.  Devries,  1310. 

V.  Edwards,  394. 

V.  Hunter,  168. 

V.  Kinkead,  333. 

V.  Lathrop,  1114. 
'  V.  Miller,  1227. 

V.  Morehead,  438. 

V.  Morgan,  1247. 

V.  Mut.  Life  Ins.  Co  ,  i;.'\.  i;:'ii 

Y.  Omohundro,  1203. 

V.   Peachy.   228. 


Young  V.  Schofield,  1319. 

V.  Smith,  131.  154. 

V.  Spencer,  567. 

V.  Tarbell.  477. 

V.  Wood,  1291. 

V.  Woolett,  583. 

V.  Young,    267,    306,    308,    433, 
621. 
Youngblood  v.  Vastine,  1093. 
Younger  v.  DufSe,  946. 
Youngman    v.    Railroad    Co.,    1199, 

1200. 
Youngs  V.  Carter,  444. 

V.  Wilson,  1184. 
Youst  V.  Martin,  1094. 
Yunker  v.  Nichols,  662. 


Z. 


Zabriskie    v.    Morris   &    E.    R.    Co. 
242. 

V.  Salter,  1224. 

V.  Wetmore,    247. 
Zaegel  v.  Kuster,  1241. 
Zander  v.  Scott,  1130. 
Zane  v.  Kennedy,  618. 

V.  Sawtell,  255. 
Zapp  V.  Miller,  392. 
Zebach  v.  Smith,  625. 
Zeininger    v.    Schnitzler,    693. 
Zell  V.  Universalist  Soc.  708.        • 
Zeller  v.   Eckert,   1010. 
Zent  V.  Picken,  903. 
Zeust  V.  Staffan,  499. 
Zigefoose  v.  Zigefoose.   1028. 
Zigler  V.  McClellan.  568. 
Zinn  V.  Scott,  467. 
Zouch   V.   Parsons.  s.">4. 
Znlp   V     Z'l'p     784 
Zuver  V.  Lyons,  284. 
Zwick  V.  .lohns,  509. 


INDEX. 


[references  are  to  pages.] 


ABANDONMENT, 

of  easement,  735. 
of  highway,  818. 

ABATEMENT, 

of  nuisance,  675. 

of  obstruction  of  easement,  730. 

ABEYANCE, 

of  the  freehold,  278,  299. 

ABUTTING   OWNERS, 

compensation  for  use  of  highway,  813,  814. 

ACCELERATION, 

of  future  estate  on  failure  of  prior  one,  304,  339. 

ACCEPTANCE, 

of  conveyance,  necessity,  935. 
dedication,  necessity,  976. 
deed  poll,  as  imposing  obligations,   750. 
transfer  of    mortgaged  land,  effect,  1217. 
trust,  244. 
rent,  as  waiver  of  forfeiture,  178. 

ACCESSION, 

see  "Fixtures." 


1470  INDEX. 

[itF.FEREXCES    AI!E    TO    PAGES.] 

ACCIDENT, 

causing  injury   to  premises,   tenant's  liability,  572. 
escape  of  water  by,  666. 
trees  severed  by,  578. 
fixtures  severed  by,  545. 
fire  caused  by,  572. 

ACCOUNTING, 

by  cotenant,  391. 

by  mortgagee,   1202,   1204. 

for  waste,   578. 

ACCRETION, 

to  banlvs  or  shores,   ownership,   1034,   1037. 

ACCUMULATIONS, 

validity   of  provision   for,   363. 

ACKNOWLEDGMENT, 

of  conveyance,  mode  of  making,  924. 

by  married  woman,  925. 

release  of  dower,  452. 

prerequisite  to  record,   1081. 
certificate,   925. 

ACQUIESCENCE. 

in  breach  of  condition,  176. 
boundary  line,  584. 

.ACTION, 

concerning  trust  property,  parties,  219. 
by  cotenants,  401. 

for   partition,  405. 

for  dower,  478. 

for  waste,  573. 

for  disturbance  of  easement,  729. 

for  rent,  794. 
to  foreclose  mortgage,  1253. 
to  redeem  from  mortgage,  1240. 

ADDITIONAL  SERVITUDE, 
on  highway,  811. 


INDEX.  1471 

[nKKKi:i;.N(i:s   at.k   to   iwciKs.] 

ADJACENT  SUPPORT, 

for  lands  and  buildings.  fifiS.  (i90,  712. 
see  "Lateral  Support." 

ADJOINING  OWNERS, 

boundary  lines,  581. 
rights  as  to  the  use  of  land,  G50. 
air,  652,  687. 
light,   651,    687. 
water,   655,  662,  666,   688. 
support,  668.  690,  712. 
party  walls.  691,  726. 
partition  fences.  693. 
trees  on  boundary,  531. 

see  "Air";  "Boundaries";  "Drainage";  "Easements"; 
"Fences";  "Flowage";  "Lateral  Support";  "Light"; 
"Percolating  Water":  "Subjacent  Support";  "Sup- 
port";   "Surface  Water";    "Water." 

ADMIRALTY  JURISDICTION. 

limits,  594. 

ADULTERY. 

effect  on  dower,  464.  .  v 

effect  on  curtesy,  498. 

ADVANCEMENTS, 

to  prospective  heir,   992. 

ADVERSE  POSSESSION, 

must  be  continuous,  999. 

actual  and  visible,   1U08. 

exclusive,  1008. 

hostile,  1009. 
duration  necessary,  998. 
under  color  of  title,  1015. 
constructive  possession,   1015. 
tacking  of  successive  possessions,  1000. 
against  state,  592,  1005. 

municipality,  817,  1005. 

cotenant,  389,  1009. 

married  woman,  499,  1003. 


1472  INDEX. 

[references  are  to  pages.] 
ADVERSE  POSSESSION— Cont'd. 

infant  or  insane  person,  1003. 

person  in  prison  or  out  of  state,  1003. 

cestui  que  trust,  1009. 

principal,  1009. 

grantee,   1010. 

landlord,  1010. 

life  tenant,  1011,  1012. 

mortgagor  or  mortgagee,  1011. 

by  cotenant,  389,  1009. 

trustee,   1009. 

agent,  1009. 

grantor,  1010. 

tenant,  1010. 

mortgagor  or  mortgagee,  1011. 

adjoining  proprietor,  1013. 
effect  as  excluding  dower,  422,  423. 

excluding  curtesy,  489,  498. 

determining  boundary  line,  583,  1013. 

destroying  easement,  1013. 

preventing  conveyance  of  land,  1118. 
of  highway,  817. 

of  land  acquired  by  accretion,  1036. 
mistaken  location  of  boundary  line,  1013. 

see,  also,  "Prescription." 

ADVOWSONS, 

nature,  8. 

AFFIRMANCE  OF  CONVEYANCE, 

by  infant,  1150. 

by  person  mentally  defective,  1154. 

AFTER-ACQUIRED  TITLE, 

transfer  by  estoppel,  1040. 

as  against  bona  fide  purchaser,  1080. 

AGE, 

of  capacity  to  convey  land,  1147. 
devise  land,  1152. 


INDEX.  1473 

[references   ABE   TO   PAGES.] 

AGENT, 

adverse  possession  by,  1009. 
notice  to,  as  affecting  principal,  1087. 
appointment  by  power  of  attorney,  606,  i078. 
execution  of  conveyance  by,  937,  939,  1145. 
see  "Powers  of  Attorney." 

AGREEMENT, 

for  security,  creating  lien,  1282. 

see  "Contract";  "Contract  of  Sale." 

AIR, 

landowner's  right  to,  free  from  obstruction,  654,  687,  1031. 
pollution  of  air,  to  injury  of  landowner,  652. 
easement  of  air,  687. 

ALIENATION, 

right  of,  fee-simple  estate,  27,  51,  1135. 

estate  tail,  66,  1139. 

life   estate,    72,   1140. 

term  of  years,  106,  1142. 

reversion,  111,  272. 

tenancy  at  will,  140. 

tenancy  from  year  to  year,  147. 

right  of  re-entry,  182,  184. 

possibility  of  reverter,  195. 

equitable  interest,  241. 

bare  legal  title,  242. 

remainders,   305,   306. 

executory   interests,   341. 

joint  interest,  394. 

dower  interest  or  estate,  468,  470,  484. 

estate  by  curtesy,   499,  501. 

married  woman's  separate  estate,  414,  1138,  1141. 
restrictions  on,    in   general,   1108. 

rule  against  perpetuities,  344. 

invalid  conditions,   167. 

protection  of  marital   rights,  444,  495. 

protection  of  creditors,  1109,  1117. 

protection  of  subsequent  purchasers,  1114. 

land  adversely  held,  1118. 

homestead  laws,  1121. 

in  creation  of  estate,  1135. 
Real  Prop.— 93. 


;i^474  INDEX. 

[references  are  to  pages.] 

ALIENATION— Cont'd. 

statutory  prohibition,  365,   1142. 

personal  incapacity,  1143. 

see  "Assignment";  "Contract  of  Sale";  "Conveyances"; 
"Judicial  Sales";  "Lease";  "Restraints  on  Aliena- 
tion";  "Sale";   "Surrender." 

ALIENS, 

right  to  acquire  land,  1158. 
descent  to,  frona,  or  through,  1158,  1159. 
dower  and  curtesy,  1158,  1159. 
removal  of  disabilities,  1160. 
forfeiture  of  land,  1050. 

ALLODIAL  LAND, 
nature,  20. 

ALLUVION, 

acquisition  of  land  by,  1034. 

ALTERATIONS. 

in  conveyance,  effect,   880.  , 

ALTERNATIVE, 

remainders,    300. 
executory  limitations,  337. 

ANCESTRAL  LANDS, 

under  law  of  descent,  990,  998. 

ANCHORAGE, 

rights  of,  over  private  land,  827. 

ANIMALS, 

trespass  by,  absence  of  fence,  588. 
live  stock  running  at  large,  588. 
ferae  naturae,  t)UO. 

ANNEXATION, 

of  chattel  to  land,  fixtures,  535. 
see  "Fixtures." 


INDEX.  1475 

[BEFEEENCES    ABE   TO   PAGES.] 

ANNUAL  RESTS, 

in  accounting  by  mortgagee,  1203. 

ANNUITIES, 

as  real  or  personal  property,  12. 

ANTENUPTIAL  AGREEMENT, 
effect  on  dower,  459. 

APARTMENT, 

lease  of,  destruction  of  building,  136. 

APPOINTMENT, 

of  trustee,  244. 

agent,  606,  1078, 
powers  of,  607,  609,  610. 

see  "Powers";  "Powers  of  Attorney." 

APPORTIONMENT, 

of  conditions    184. 

of  covenants,  781,  787. 

of  easements,  724. 

of  rent,  as  to  amount,  781,  784,  786,  793. 

as  to  time,  783. 
of  accretions,  1037. 

see   "Severance." 

APPROPRIATION, 

of  water,  656,  667,  668. 
priority  of,  661. 

see  "Streams";  "Water";  "Watercourses." 

APPURTENANCES, 

easements  as,  702,  718. 
profits  a  prendre  as,  742. 
not  inclusive  of  land,  898. 
passing  with   land,  897. 

AQUEDUCT, 

on  another's  land,  689. 


1476  INDEX. 

[references   ABE   TO   PAGES.] 

ASSESSMENTS, 

sale  of  land  for  nonpayment,  1064. 
lien  of,  1320. 
see  "Taxes." 

ASSIGNMENT, 

of  benefit  and  burden  of  covenants,  108,  115,  749,  751,  752,  916. 
chattel  interest,  106,  857. 
equitable  interest,   241. 
bare  legal  interest,  242. 
dower,   469,   472,  484. 
widow's  homestead,   508. 
lease,  106,  115. 

distinguished  from  sublease,  114. 

effect  on  covenants,  108,  115. 
reversion,  111. 

effect  on  covenants,  115. 
right  of  entry,  182. 
rent,  780,  785. 
power,  619,   621. 
license,  684. 
term  for  years,  106. 
tenancy  from  year  to  year,  147. 
mortgage,  1225. 

freedom  from  equities,  1230. 

record,  1232. 

person  entitled  to  foreclose,  1263. 
vendor's  lien,  1290. 

see,     also,     "Alienation";      "Conveyances";      "Grant"; 
"Lease";   "Mortgages";  "Subrogation";  "Transfer." 

ASSIGNEE  IN  BANKRUPTCY, 

as  assignee  of  lease,  110. 

right  to  attack  conveyance,  1117. 

ASSUMPSIT, 

between  cotenants,   393. 
for  rent,  798. 

ASSUMPTION, 

of  mortgage  by  transferee  of  land,  1216. 


INDEX.  1477 

[REFEBENCES    ABE   TO   PAGES.] 


ATTACHMENT. 


lien  of,  when  commences,  1315. 
interests  subject  to,  1316. 
priorities,  1316. 
for  rent,  804. 

ATTESTING  WITNESSES, 

to  conveyance,  923. 

to  will,  947,  950. 

testamentary  provision  for,  949. 

ATTORNEY,   POWERS  OF, 
see  "Powers  of  Attorney." 

ATTORNEY, 

execution  of  conveyance  by,  938. 
fees,  stipulation  in  mortgage,  1275. 

ATTORNMENT, 

necessity,  35,  112,  850. 
to  mortgagee,  1205. 

AVOIDANCE  OF  CONVEYANCE, 

by  infant,  1149. 

by  person  mentally  defective,  1153. 

by  creditors,  1109. 

AVULSION, 

of  land  by  action  of  water,  1236. 

AWAY-GOING  CROPS, 

customary  right,  524. 

see  "Crops";  "Emblements." 

B. 

BANK  OF  STREAM, 

as  boundary  of  private  land,  593,  890. 

construction  of  conveyance,  893. 

change  in  location,  1035. 
accretion  and  avulsion,  1034,  1037. 

see  "Streams";  "Rivers";  "Water";  "Watercourses. 


1478  INDEX. 

[BEFEEENCES    ABE   TO   PAGES.]  - 

BANKRUPTCY, 

adjudication  as  divesting  title,  1062. 
conveyances  void  under  statute,  1117. 
disclaimer  of  lease  by  trustee,  110. 
limitation  over  on,  1137,  1140. 

BARGAIN  AND  SALE, 

nature,  202,  206. 

valuable  consideration  necessary,  860. 
recital  of  consideration,  877. 
future  estates  created  by,  318,  320. 

BARRING   THE   ENTAIL, 

method,  66. 

see  "Estate  in  Fee  Tail." 

BASE  FEES, 

nature,  192. 

see  "Determinable  Pees." 

BASTARDS, 

rights  of  inheritance,  990. 

BED  OF  STREAM, 

ownership,  593,  595,  890,  1035. 

see  "Boundaries";   "Rivers";   "Streams";   "Water";   "Water- 
courses." 

BENEFICIARY, 

see  "Cestui  Que  Trust." 

BETTERMENT  ACTS, 

nature,  554. 
lien  under,  1323. 

BEYOND  SEAS, 

adverse  possession  against  persons,  1003. 

BLANK, 

in  conveyance,  effect,  867. 


INDEX.  1479 

[references  are  to   pages.] 

BONA  FIDE  PURCHASERS. 

from  trustee,  242.  j 

rights  as  to  articles  annexed  to  land  purchased,  543. 

claiming  under  escrow,  932. 

equitable  doctrine,   1075. 

effect  of  recording  acts,  1077,  1079,  1080. 

creditors    as,  1313,  1317,  1319. 

estoppel  applied  against,  1041. 

of  land  conveyed  in  fraud  of  creditors,  1113. 

mortgagees  as,  1174,  1184,  1186. 

of  mortgaged  land,  1176,  1178,  1180. 

of  mortgage,  1230,  1232. 

not  affected  by  vendor's  lien,  1289,  1293. 

of  insane  person's  land,  1154,  1155. 

BORDER  TREES, 

rights  of  adjoining  owners,  531. 

BOTES, 

see  "Estovers." 

BOUNDARIES, 

judicial  determination,   581. 

express  agreement,  583. 

acquiescence,  584. 

mistake  in  location,  adverse  possession,  1013. 

practical  location,  586,  889. 

estoppel  to  question,  586,  1046. 

on  tide  waters,   591. 

navigable  nontidal  streams,  593. 

nonnavigable  streams,  595. 

lakes  and  ponds,  595.  ' 

description  in  conveyance,  886. 

by  monuments,  887. 

by  courses  and  distances,  888. 

on  water,  890,  1035. 

on  highway,  893. 

on  private  way,  897. 
trees  located  on.  531. 

BRANCHES, 

projecting  over  another's  land,  532. 


1480  INDEX. 

[references  are  to  pages.] 
BRIDGE, 

nature  of  franchise,  11.  : 

conveyance  of,  883. 

BURIAL  RIGHTS, 
nature,  699. 

BUILDING, 

as  fixture,  539,  541. 

on  land  of  another,  554. 

divided  ownership,  554,  691,  726. 

support  of,  by  land  or  adjacent  building,  670,  672,  690,  712,  726. 

projecting  over  another's  land,  515. 

interfering  with  surface  water,  664. 

destruction,  effect  on  rent,  791. 

unsightly  structure,  injury  to  adjacent  owner,  650. 

lien  for  erection  or  repair,  1297. 

grant  of,  as  including  land,  882. 

waste  in,  567,  570. 

BUILDING  RESTRICTIONS, 

enforcement  against  subsequent  owners,  762. 

BUSHES,  ■ 

as  fructus  naturales,  522. 

BUSINESS, 

use  of  building  for,  injury  to  adjoining  land,  650. 

c. 

CANCELLATION, 

of  conveyance,  effect,  934. 
of  will,  revocation,  957. 

CAPACITY,  : 

see  "Personal  Capacity." 

CATTLE, 

duty  to  fence  against,  587,  589. 

CAVEAT  EMPTOR. 

principle  applies  to  lessee,  98. 


INDEX.  1481 

[references  are  to  pages.] 


CEMETERIES, 

rights  of  burial,  nature,  699. 

CERTIFICATE, 

of  acknowledgment,   295. 

entry  of  public  land,  834. 
registered  title,  1101. 

CESSER,   PROVISO  FOR, 
nature  and  effect,  189. 

CESSION, 

of  territory  to  United  States,  831. 

CESTUI  QUE  TRUST, 

what  constitutes  position,  218. 
who  may  be,  225. 
right  to  possession,  240. 
transfer  by,  241. 

right  to  conveyance  of  legal  title,  246,  1138. 
see  "Trustee";   "Trusts." 

CESTUI  QUE  USE, 

meaning  of  term,  198. 

CESTUI  QUE  VIE, 

meaning  of  term,  77. 

CHAIN  OF  TITLE, 

meaning  of  term,  1079. 

CHAMBER, 

in  house,  separate  ownership,  554. 

lease,  destruction  of  building,  136. 

CHARGE, 

of  sum  of  money  on  land,  1279. 
debts  and  legacies,  1280. 


1482  INDEX. 

[references  are  to  pages.] 
CHARITABLE  TRUST, 

nature  and  validity,  248. 

cy  pres  doctrine,  251. 

subject  to  rule  against  remoteness,  361. 

may  be  perpetual,  250. 

CHARITY, 

dedication  for,  972. 

see,  also,  "Charitable  Trust." 

CHATTELS, 

personal,  nature,  15. 

as  heirlooms,  14. 

annexation  to  land,   535. 

lease  with  land,  rent,  774,  775. 
real,  nature,  3. 

future  interests  in,  338. 

no  dower  in,  429. 

CHILD, 

purchase  in  name  of,  232. 
birth  of,  as  revoking  will,  962. 
unborn,  as  remainderman,  293,  303. 

inheritance   by,  991. 
omission  from  will,  effect,  966. 
illegitimate,  inheritance  by,  990. 
homestead  rights,  512. 

CHILDREN, 

word  of  purchase  or  limitation,  59. 
gift  to,  as  a  class,  291,  335. 
appointment  among,  637,  639. 

CLAIMS, 

mineral,  in  public  lands,  838. 

CLASS, 

gift  to.  291,  335. 

remoteness,  348,  360. 

CLEARING  LAND, 
as  waste,  564. 


INDEX.  1483 


[references    ABE   TO   PAGES.] 

COLOR  OF  TITLE, 

adverse  possession  under,  1015,  1016. 

COMMON, 

rights  of,  741. 
of  turbary,   745. 
fishing,  745. 

estovers,  745. 
apportionment  and   extinguishment,   747. 

COMMON,   TENANCY   IN, 

see  "Tenancy  in  Common." 

COMMONS,   PUBLIC,   821,   822. 

COMMUNITY  PROPERTY, 

nature,  383. 
liability  for  debts,  385. 
rights  of  succession,   385. 
not  subject  of  partition,  408. 

COMPENSATION, 

for  improvements  on  another's  land,  553. 

additional  servitude  on  highway,  811,  813. 

land  taken  for  public  use,  1072. 
of  trustee,  240. 

COMPETENCY, 

of  attesting  witness,  924. 
see  "Personal  Capacity." 

CONCURRENT  OWNERSHIP, 
general  nature,  370. 
action  by  cotenants,  401. 
accounting  by  cotenant,  391. 
adverse  possession  by  cotenant,  389. 
conveyance  by  cotenant,  393. 
contract  by  cotenant,   393. 
improvements  by  cotenant,  396. 
repairs  by  cotenant,  397. 
payment  of  incumbrance,  398. 
waste  by  cotenant,  579. 
acquisition  of  adverse  title  by  cotenant,  398. 


1484  INDEX. 

[BEFEEENCES    ABE   TO   PAGES.] 

CONCURRENT  OWNERSHIP— Cont'd. 

widow  of  cotenant,  dower  right,  440. 

husband  of  cotenant,  curtesy,  494. 

see,  also,  "Joint  Tenancy";  "Tenancy  in  Common";  "Co- 
parcenary"; "Tenancy  by  Entireties";  "Community 
Property";   "Partnership  Property." 

CONDEMNATION  OF  LAND, 

as  constituting  eviction,  126. 
effect  on  liability  for  rent,  791. 
see,  also,  "Eminent  Domain." 

CONDITION, 

estate  upon,  nature,  133,  157. 
expressed  and  implied,  161. 
precedent  and  subsequent,  158,  166. 
distinguished  from  covenant,  160. 

trust,  161. 

special  limitation,  160,  189,  190. 
precedent  to  contingent  remainder,  286. 

to  executory  limitation,  318,  325. 
impossible  of  performance,   167. 
repugnant  to  estate,  171. 
in  restraint  of  marriage,  169. 
against  alienation,  1108. 

assignment  of  lease,  106.  "> 

effect  of  invalidity,  161. 
creation,  161. 

rule  against  perpetuities,  applicability,  353. 
construction,  162,  165,  166. 
apportionment,  184. 
performance,  mode  of,   173. 

time,  173. 

demand  for,  174. 
waiver,  175. 
breach,  waiver,  177. 

forfeiture  for,  180,  185. 

entry,   180. 

ejectment,  181. 

persons  entitled  to  enforce  forfeiture,  182. 

relief  against  forfeiture,  186. 

avoids  mesne  charges,  186. 

defeats   dower,   430. 
of  leased  premises,  98. 


INDEX.  1485 

[references  are  to  pages.  J 

CONDITIONAL  FEE, 
at  common  law,  54. 

CONDITIONAL  LIMITATION, 

meaning  of  term,  189,  324. 
effect  on  dower  right,  431. 
curtesy,  492. 

see,  also,  "Executory  Devise";  "Executory  Interests"; 
"Executory  Limitations";  "Special  Limitation";  "Es- 
tate on." 

CONDITIONAL  SALE, 

distinguished  from  mortgage,  1181. 

CONFIDENTIAL  RELATIONS, 

trusts  arising  from,  233. 

undue  influence,  validity  of  devise,  953. 

CONFISCATION, 

of  enemy's  property,  1051. 

CONFLICT  OF  LAWS, 

in  reference  to  land,  16. 

CONSANGUINITY, 
see  "Descent." 

CONSIDERATION, 

for  declaration  of  trust,  223. 

contract  releasing  dower,  463. 

conveyance,  necessity,  228,  860,  876. 

mortgage,  1183. 
acknowledgment  of  receipt,  877. 
trust  resulting  from  payment,  229. 

from  nonpayment,  228,  876. 
inadequacy,  putting  purchaser  on  inquiry,  1086. 
valuable,  necessity  as  against  creditors,  1111. 

necessity  as  against  subsequent  purchaser,  1114. 

necessity  for  protection  by  recording  law,  1093. 

pre-existing  debt  as,  1093. 

see  "Voluntary  Conveyances." 


1486  INDEX. 

[references  are  to  pages.] 
CONSOLIDATION, 

of  mortgages,  1243. 

CONSTRUCTION, 

of  condition,   165. 

habendum,  870. 

description  of  land,  882-898. 

gift  to  a  class,  335. 

limitations  to  survivors,  335. 

word  "issue,"   61. 

phrase  "die  without  issue,"  etc.,  62,  278,  302,  329,  357. 

covenants  for  title,  899,  907. 
in  favor  of  vesting,  166,  285,  289,  333. 

CONSTRUCTIVE  NOTICE, 

from  record  of  instrument,   1077-1085. 
possession,  1088. 

CONSTRUCTIVE  POSSESSION, 
what  constitutes,  1015. 

CONSTRUCTIVE  TRUST, 
arising  from  fraud,  233. 

CONTINGENT   REMAINDERS, 

nature,  282. 

to  person  not  ascertained,  282. 
prior  particular  estate,  278,  294. 
failure,  292. 

destruction  of  particular  estate,  295,  297. 
transfer,  306 

to  unborn  child,  293,  303. 
rule  against  perpetuities,  applicability,  356. 

CONTINGENT   USES, 

meaning  of  term,  325. 
CONTINUAL  CLAIM, 

nature,  34. 

CONTINUOUS, 

possession,  giving  title  to  land,  998. 

user,  creating  easement,   1023. 

easement,  implied  grant  or  reservation,  707. 


INDEX.  1487 

[BEFEBENCES    ABE   TO    PAGES.] 


CONTRACT, 


for  lease,  88,  89,  139. 

division  of  crops,  535. 

relinquishment  of  dower,  460,  461. 

removal  of  articles  annexed  to  land,  541,  550. 

contribution  to  party  wall,   758. 

security,   creating   lien,    1282. 
determining  boundary,  583. 
contract  as  to  use  of  land  binding  on  purchaser,  762. 

see,  also,  "Contract  of  Sale";    "Covenants";    "Purchasers"; 
"Sale." 

CONTRACT   OP  SALE, 

vendor  trustee  for  vendee,  264. 

annexations  by,  546. 
vendor's  interest,  dower  in,  437. 

mortgage  of,    1171. 

subject  to  judgment  lien,  1310. 

mechanic's  lien  on,  1300. 
vendee,  annexations  by,  546. 

as  tenant  at  will,  139. 

lien  of,  for  money  paid,  1294. 
vendee's  interest  subject  to  judgment  lien,  1310. 

dower  in,   432. 
equitable  conversion,   266. 
effect  on  rights  of  succession,  267. 
vendor's  lien,  before  conveyance,  1293. 

after  conveyance,  1287. 
default  by  vendee,  1293. 

see,   also,    "Conversion";    "Purchasers";    "Sale";    "Vendor's 
Lien." 

CONTRIBUTION, 

between  cotenants,  396. 

between  life  tenant  and  remainderman,  75. 

to  repair  of  party  wall,  727. 

erection  of  party  wall,  758. 

erection  of  partition  fence,  695. 

payment  of  mortgage,  435,  1222,  1224,  1245.  • 

CONVERSION.    EQUITABLE. 

of  land  into  money,  254. 
money  into  land,  254. 
partnership  land,  255. 


1488  INDEX. 

[kefebences  are  to  pages.] 
CONVERSION,  EQUITABLE— Cont'd. 

by  paramount  authority,  260,  436. 

contract  of  sale,  266. 
time  of,  258. 
election  against,  258. 
failure  of  purpose,  261. 
resulting  trust  under,  261. 
effect  on  dower  right,  436. 
proceeds  of  condemnation,  261. 

CONVEYANCES, 

classes,  feoffment,  847. 

fines  and  recoveries,  849. 

grant,   849. 

lease,  849. 

release,   849. 

surrender,  852. 

bargain  and  sale,  202,  206,  858,  859. 

covenant  to  stand  seised,  202,  206. 

lease  and  release,  207. 

exchange,  857. 

quitclaim,  861. 

assignment  of  leasehold,  857. 

by  way  of  mortgage,  1170. 
tortious,  207,  295,  848. 

failing  to  take  effect  as  intended,  otherwise  supported,  862. 
by  married  women,  414,  416,   1144. 

infants,  1147. 

persons   mentally   defective,    1152. 

corporations,    1156. 

disseisees,  1118. 

aliens,  1158. 

criminals,  1161. 

cotenants,  393. 

trustees,  242. 
to  married  women.  1145. 

husband  and  wife,  379. 

infants,  936,  1152. 

persons  mentally  defective,  1155. 

corporations,  1157. 

aliens,  1158. 
component  parts,  premises,  864. 

designation  of  parties,  866,  871. 

operative  words,   869. 


INDEX.  148'> 

[references    ABE   TO   PAGES.] 

CONVEYANCES— Cont'd. 

description,  881. 

habendum,  870. 

exception,  872. 

reservation,  872. 

statement  of  consideration,  877. 

covenants,  899. 
writing  necessary,  8G3. 
execution,  signing,  918. 

sealing,  920. 

delivery,    927. 

acceptance,  935. 

by  agent,  937. 

witnesses,  923. 

acknowledgment,  924. 
escrow,  931. 
proof  of,  927. 
consideration,  necessity,   876. 

acknowledgment,   877. 
alterations,  effect,  880. 
blanks,  parol  authority  to  fill,  8C7. 
mistake,  effect,  878. 
fraud  and  duress,  effect,  879. 
in  fraud  of  creditors,  1109. 

purchasers,   1114. 
of  homestead,  504,  509,  1132. 

minerals  in  place,  517,  519. 

growing  trees,   530. 

equitable  interests,  241. 

bare  legal  interest,  242. 

reversion.  111. 

contingent  remainder,  307. 

executory  interest,  341. 

land  in  adverse  possession,  1118. 
effect  as  excluding  curtesy,  495,  497. 

releasing  dower,  443,  448,  450,  468. 

passing  fixtures  on  land,  546. 

passing  crops  and  trees,  525. 

])assing  manure  on  land,  555. 

execution  of  power,   628. 

see,    also,    "Alienation";    "Assignment";    "Covenants"; 
"Description";    "Mortgages";    "Record";    "Restraints 
on     Alienation";      "Sale";      "Surrender";      "Vendor's 
Lien." 
Real  Prop.— 94. 


1490  '  INDEX. 

[references  are  to  pages. J 
COPARCENARY, 

nature,  378. 

contract  or  conveyance  by  coparcener,  31)3. 

action  by  coparceners,  402. 

termination,   379. 

partition,   403,   405. 

COPYHOLD    TENURE, 
nature,  24. 

CORODIES, 

nature,  9. 

CORPORATIONS, 

franchise,  nature,  11. 
stock,  personal  property,  13. 
conveyance  to,  words  of  limitation,  46. 
capacity  to  hold  and  transfer  land,  1156. 
forfeiture  of  land,  1151. 
cannot  be  joint  tenant,  373. 
dissolution,   reverter  of  land,   273. 

COTENANCY, 

see  "Concurrent  Ownership." 

COTRUSTEES, 

rights  and  liabilities,  226. 

COURSES  AND  DISTANCES, 
description  by,   886. 

COVENANTS, 

distinguished   from  condition,   160. 

implied  and  express,  94,  901. 

acceptance  of  deed  poll,  750. 

in  lease,  nature  and  effect,  93,  95,  108,  112,  llo. 

dependent  and  independent,  94. 

ag  to  condition  of  premises,  99. 

to  make  repairs,  101. 

against  assignment,    106. 

quiet  enjoyment,  93,  95. 

to  pay  rent,  780,  782.  787,  797. 


INDEX.  1491 

[BEFEBENCES    ABE    TO    PAGES.] 

COVENANTS— Cont'd. 

running  with  land,   115. 

mortgagee's  liability,  1197. 
for  title,  general  nature,  899. 

general  and  special,  901. 

implied,  901. 

implied  on  partition,   404. 

seisin,  901. 

right  to  convey,  903. 

against  incumbrances,  904. 

quiet  enjoyment,  93,  95,  908. 

warranty,    908. 

further  assurance,  911. 

when  run  with  the  land,  914,  916. 

damages  for  breach,  98,  912. 
to  stand  seised,  nature,   202,   206.   860. 

creating  future  estate,  320. 
to  pay  rent,  apportionment,  787. 

passing  of  burden  and  benefit,  780,  782. 

actions  on,  797. 
as  to  use  of  land,  749,  757. 
as  creating  easement,  701,  757. 
running  with  the  land,  115,  749,  757,  780,  782,  916. 
rule  against  perpetuities,  applicability,  353. 

COVERTURE, 

husband's  estate  during,  410. 
equitable  rights  of  wife,  412. 
statutory  rights  of  wife,  415. 
effect  on  capacity  to  hold  and  transfer  land,  1144. 

see  "Husband  and  Wife";    "Marriage";    "Married  Women." 

CREDITORS, 

conveyances  in  fraud  of,  1109. 

CREDITORS'  SUIT, 

to  subject  land,  1057,  1058. 

CRIME, 

forfeiture  for,  1050. 

CRIMINALS, 

right  to  hold  and  transfer  land,  1161. 


1492  INDEX. 

[references  are  to  pages.] 

CROPS, 

legal  nature  of,  521. 

rights  of  outgoing  tenant,  74,  136,  143,  523. 

succession  on  owner's  death,  525. 

rights  of  disseisor,  525. 

cultivation  on  shares,  533. 

mortgage  on,  1171,  1174. 

liens  on,  1322. 

see,  also,  "Vegetable  Products." 

CROSS  REMAINDERS, 
nature,  300. 

CROSS   EXECUTORY  LIMITATIONS, 
nature,  338. 

CULTIVATION, 

improper,  of  leased  land,  566. 

CURTESY, 

nature  of  estate,  486. 

initiate  and  consummate,  498,  501. 

necessity  of  marriage,  487. 

seisin,  487. 

birth  of  issue,  490. 
things  in  which  right  exists,  491. 
quantum  of  wife's  estate,  491. 
in  estate  divested  by  executory  limitation,  492. 

equitable  estates  and  interests,  492,  495. 

bare  legal  estate,  493. 

future  estates  and  interests,  493. 

sole  and  separate  estate,  496. 

joint  interest,  494. 
effect  of  conveyance  by  wife,  495. 

devise  by  wife,  495. 

divorce,   497. 

alienage  of  husband  or  wife,  1158,  1159. 
contract  excluding,  496. 
bar  by  limitations,  498. 
statutory  modification  and  abolition.  501. 


INDEX.  1493 

[EEFEBENCES   ABE  TO  PAGES.] 


CUSTOM, 


tenant's  right  to  remove  fixtures,  550. 

harvest  crops,  524. 
public  rights  in  private  land,  823. 

CY  PRES, 

doctrine  applied  to  charities,  251. 
contingent  remainders,  304. 

D. 

DAM, 

erection  by  riparian  owners,  658,  687. 

DAMAGES, 

for  breach  of  covenant  of  title,  98,  912. 
failure  to  assign  dower,  481. 
failure  to  give  lessee  possession,  91. 
waste,  574,  575. 

DEAD  WOOD, 

tenant  entitled  to,  564,  565. 

DEATH, 

of  lienor,  right  to  enforce  lien,  1290. 

of  mortgagor,  effect  on  power  of  sale,  1268. 

of  mortgagee,  personal  representative  entitled  to  foreclose,  1264. 

effect  on  power  of  sale,  1270. 
"without  issue,"  62,  278. 

DEBT, 

for  rent,  794,  799. 

DEBTS, 

enforcement  against  land,  52,  67. 

community  property,  385. 

contingent  remainder,  308. 

partnership  property,   387,   388. 

crops  and  trees,   527. 

dower  right,  470. 

property  appointed  under  power,  643. 
execution  for,  1053. 


1494  INDEX. 

[EEFEBENCES    ABE   TO   PAGES.] 

DEBTS— Cont'd. 

subjection  of  land  in  equity,  1057,  1059. 
restrictions  on  enforcement,  1135. 

homestead,  507,  1121. 
of  decedent,  lien  of,  1?21. 
secured  by  mortgage,  1183,  1188. 

assignment,  1226. 

bar  by  limitations,  1256. 

partial  default,  1253. 

personal  liability,  1277. 
charged  on  land,  1280. 

see  "Creditors'  Suit";  "Decedent's  Land";  "Execution,  Writ 
of";   "Judgment";   "Liens";   "Mortgages." 

DECEDENT'S  LAND, 

sale  to  pay  debts,  1059. 
lien  of  debts,  1321. 

mortgage  on,  payment  from  personalty,  435. 
see  "Executors  and  Administrators." 

DECLARATION  OP  TRUST, 
nature  and  form,  221. 

DECREE, 

for  assignment  of  dower,  483. 

partition,   407. 

strict  foreclosure,  1257. 

sale  under  mortgage,  1260. 
transfer  of  title  by,  1061. 
statutory  lien  of,  1307. 

see  "Judgment." 

DEDICATION, 

nature  and  purposes,  971. 
intention  must  clearly  appear,  973. 
under  statute,  975. 
effect  on  ownership  of  land,  978. 

rights  of  user,  978. 

dower  right,  444,  467. 
acceptance  by  public,  976. 
abandonment  by  public,  980. 

DE  DONIS, 

statute  of,  55. 


INDEX.  1495 

[bepebences  are  to  pages.] 


DEEDS, 

see  "Conveyances." 

DEED   OF   TRUST, 

to  secure  debt,  1273. 

DEED  POLL. 

nature,  864. 

acceptance  of,  effect,  750. 

DEFEASANCE, 

separate  from  mortgage,  1177. 
record, 1178. 

DEFECTS, 

in  leased  premises,  98,  103. 

DEGREES, 

of  relationship,  987. 

DELEGATION, 

of  power,  619. 

DELIVERY  OF  CONVEYANCE, 

nature  of  requirement,  927. 
manual  transfer  unnecessary,  928 
presumption  from  record,  930. 
in  escrow,  931. 
on  condition,  933. 

DEMAND, 

for  assignment  of  dower,  479. 
performance  of  condition,  174 
payment  of  rent,  175. 

DEMISE, 

see  "Estate  for  Years";  "Lease." 

DEPOSIT, 

of  title  deeds,  as  mortgage,  1284. 


1496  INDEX. 

[references  are  to  pages.] 
DESCENT, 

at  common  law,  26,  982. 
to  issue,  984. 

surviving  consort,  984. 

parent,  986. 

collateral  kindred,  986. 

kindred  of  half  blood,  987. 

illegitimate  children,  990. 

unborn  children,  991. 

aliens,  1158. 

coheirs,  378. 

murderer  of  ancestor,   1161.  . 
of  estate  in  fee  tail,  68. 

estate  pur  autre  vie,  77. 

crops  and  trees,  525. 

fixtures,  547. 

land  sold,  264,  267. 

land  mortgaged,  1194. 

trustee's  title,  245. 

remainder,  305,  307. 

executory  interest,  342. 

ancestral  land,  990. 
advancements,  992. 
alienage  of  ancestor,  1159. 
of  rent  charge,  778. 

DESCRIPTION, 

of  land  conveyed,  881. 

reference  to  plat,  885. 

courses  and  distances,  886. 

monuments,  886. 

boundary  on  v^ater,  890,  1035. 

boundary  on  way,  893. 
of  obligation  secured  by  mortgage,  1184. 

DESTRUCTION, 

of  leased  premises,  101,  135. 
conveyance,  effect,  934. 
will,  as  revocation,  957. 

DETERMINABLE  FEE, 
nature  of,  192. 

DEVIATION, 

from  highway,  rights  of  public,  816. 


INDEX.  1497 

[references  are  to  pages.] 
DEVISE, 

of  land,  includes  vegetation,  525. 

includes  fixtures,  547,  550. 
of  remainder,  305,  307. 

executory  interest,  322. 

mortgaged  land,  1194. 
to  a  class,  291,  335. 

survivors,  335. 
in  lieu  of  dower,  454. 
excluding  curtesy,  495. 
effect  on  widow's  homestead,  510. 
devisee's  death  before  testator,  953. 
void  devise,  954,  955. 
for  charity,  248. 

see  "Executory  Devise";    "Revocation";    "Wills." 

DIE  "WITHOUT  ISSUE, 

see  "Failure  of  Issue."  ' 

DIGNITIES, 

not  recognized  in  United  States,  9. 

DISABILITY, 

of  coverture,  1144. 
infancy,  1147. 
mental   incapacity,   1152. 
corporation,  1156. 
alienage,  1158. 

DISCHARGE, 

of  mortgage,  1238. 

DISCLAIMER, 

of  landlord's  title,  estoppel,  121. 
forfeiture  for,  134. 
making  possession  adverse,  1010,  1011. 

DISSEISIN, 

nature,  33. 

effect  on  conveyance,  1118. 
disseisor's  right  to  emblements,  525. 
see  "Adverse  Possession." 


1498  INDEX. 

[references  are  to  pages.] 
DISTRESS, 

originally  incident  to  tenure,  20. 

incident  to  rents  service  and  cliarge,  776,  777. 

abolished  in  some  states,  800. 

who  may  distrain,  778,  801. 

time  of  distress,  802. 

chattels  subject  to  distress,  802. 

DISTURBANCE  OF  EASEMENT, 

what  constitutes,  728. 
remedy,  729. 

DIVERSION  OF  WATER, 

by  riparian  owner,  656,  688. 

DIVISION  WALLS, 

nature,  691. 

see  "Party  Walls." 

DIVORCE, 

effect  on  husband's  estate  during  coA^ertuie.  411 
dower,  463. 
curtesy,  497. 

DOMINANT  ESTATE, 

in  connection  with  easement,  685. 

DOS  DE  DOTE, 

nature  of  rule,  439. 

DOWER, 

inchoate,  not  vested  right,  466. 

protection,  468. 
consummate,  469,  470. 
marriage,  420. 
seisin  of  husband,  420. 
in  lands  and  tenements,  425. 

wild  lands,  426. 

mines  and  quarries,  426. 

exchanged  lands,  427. 

easement,  428. 

rent,  428. 


INDEX.  1499 

[references  are  to  pages.] 


DOWER— Cont'd. 


right  of  profit,  428. 

license,  429. 

ferry,  429. 

estate  on  condition,  430. 

on  special  limitation,  430. 

divested  by  executory  limitation,  431. 

for  life,  429. 

less  than  freehold,  429. 

equitable  estate  or  interest,  432. 

vendor's  interest,  437. 

vendee's  interest,  432. 

bare  legal  estate,  437. 
■V   money  to  be  invested  in  land.  43r;.  447. 

proceeds  of  judicial  sale,  436,  437. 

future  estates  or  interests,  438. 

land  subject  to  previous  dower  estate,  438. 

land  jointly  owned,  440. 

partnership  land,  442. 

mortgaged  land,  434,  445,  447. 

land  conveyed  in  fraud  of  creditors,  452. 
excluded  by  purchase-money  mortgage,  424. 
defeat  of  husband's  title.  442,  446. 
jointure  or  agreement,  459. 
express  release,  448,  468,  469. 
condemnation  of  land,  448,  467. 
dedication  of  land  by  husband,  446. 
divorce,  463. 
adultery,  464. 
devise  in  lieu  of,  453. 
alienage  of  husband  or  wife,  1158,  1159. 
estoppel  to  claim,  466. 
partition,  effect,  441. 
conveyance  in  fraud  of,  446. 
assignment,  method  and  effect,   469,   472.  484. 

valuation  of  dower  interest,  475. 
proceeding  to  compel  assignment,  form,  478. 

accounting,  481. 

damages,  480. 

abatement,  482. 

decree,  483. 
mortgage  on  land  assigned,  payment  from  personalty.  435. 
statutory  modification  and  abolition,  485. 
widow's  quarantine,  471. 


1500  INDEX. 

[references  are  to  pages.] 

DRAINAGE, 

into  stream,  riparian  right,  659,  663,  689. 
in  or  on  adjoining  land,  663,  689,  1031. 
by  local  association,  717. 
apparent  easement  of,  705,  707. 

DRUNKENNESS, 

of  grantor,  effect,  1153. 

DUMPOR'S  CASE, 

rule  in,  application,  176. 

DURESS, 

conveyance  obtained  by,  879. 

DUST, 

injury  to  adjoining  owner,  652. 

E. 

EARTH, 

as  subject  of  ownership,  516,  517. 

EASEMENTS, 

nature  and  classes,  677. 
distinguished  from  natural  rights,  677. 

profits  a  prendre,  678. 

licenses,  678. 
appurtenant  and  in  gross,  685. 
apparent  and  continuous,  707. 
reciprocal,  712. 
of  necessity,  713. 

dominant  and  servient  tenements,  685. 
of  light,  687. 

air,  687. 

water,  687. 

aqueducts,  689. 

drains,  689. 

fencing,  694. 

rights  of  way,  696,  719. 

support  of  lands  and  buildings,  690,  712. 

pews,  697,  730. 

burial  rights,  699. 


INDEX.  1501 

[references  are  to  tages.] 
EASEMENTS— Cont'd. 

in  party  wall,  691,  726. 

highway,  814. 
equitable,  762. 
acquisition  by  express  grant,  700. 

reservation  or  exception,  703,  874. 

implied  grant,  703,  705. 

implied  reservation,  711. 

separation  of  tenements,  705. 

prescription,  716,  722,  1019,  1028. 
acquisition  by  statutory  proceeding,  716. 

condemnation  proceeding,  1069,  1070. 

estoppel,  717. 
oral  agreement  for  creation,  701. 
part  performance,  682. 

passing  as  appurtenant  to  land,  702,  705,  897. 
mode  and  scope  of  exercise,  718-724. 
apportionment,  724. 
'       interference  with,  728. 

action  for  damages,  729. 

injunction,  730. 
repairs  and  alterations,  725. 
extinction,  cessation  of  purpose,  732. 

change  in  dominant  tenement,  733. 

merger  in  ownership,  734. 

express  release,  735. 

abandonment  or  implied  release,  735. 

adverse  user  of  land,  737. 

executed  license,  738. 

in  favor  of  innocent  purchaser,  739. 

within  covenant  against  incumbrances,  903,  905. 
dower  in,  428. 

covenants  running  with,  756. 

see,  also,  "Adjoining  Owners";  "Fences";  "Grant"; 
"Highways";  "Licenses";  "Party  Walls";  "Profits  a 
Prendre";  "Prescription";  "Streams";  "Support"; 
"Waters";   "Ways." 

EAVES, 

projecting  over  another's  land,  515. 

EJECTMENT, 

between  cotenants,  389. 
by  cotenants,  402. 


1502  INDEX. 

[references  are  to  pages.] 
EJECTMENT— Cont'd. 

mortgagee,  1196. 

mortgagor,  1197. 

dowress,  478. 

equitable  owner,  843. 
for  breach  of  condition,  181. 

dower,  478. 

land  within  highway  limits.  810. 

incorporeal  things,  730. 
allowance  for  value  of  improvements,  554. 

ELECTION, 

against  equitable  conversion,  258. 

to  accept  devise  in  lieu  of  dower,  456. 

ELEGIT,  WRIT  OF, 

nature,  1053. 

see,  also,  "Execution." 

ELOPEMENT, 

as  bar  of  dower,  464. 

EMBLEMENTS, 

nature,  522. 

rights  of  outgoing  tenant,  74,  136,  143,  523. 
disseisor,  525. 

see,  also,  "Crops";    "Vegetable  Products.' 

EMINENT  DOMAIN, 

the  power  to  appropriate,  1068. 
rights  subject  to  appropriation,  1069. 
mode  of  appropriation,  1071. 
payment  of  compensation,  1071. 
time  of  passing  of  title,  1072. 
proceeds,  when  regarded  as  land,  261. 
effect  on  dower  right,  448,  467. 
liability  for  rent,  304,  791. 
see  "Condemnation." 

ENCROACHMENT, 

on  adjoining  land,  515,  516. 


INDEX.  1503 


[UKFEUKNCES    AKE    TO    PAGES.] 

ENJOYMENT,  RIGHTS  OF, 
incident  to  ownership,  513. 

ENTAIL, 

see  "Estate  in  Fee  Tail." 

ENTIRETIES.  TENANCY  BY, 
see  "Tenancy  by  Entireties." 

ENTRY, 

by  lessee,  90. 

assignee  of  lease,  107. 
for  breach  of  condition,  180. 
under  pre-emption  law,  832,  833. 

homestead  law,  844. 
on  state  land,  841. 
foreclosure  of  mortgage  by,  1258. 

see  "Condition." 

ENTRY,  WRIT  OF, 

see  "Writ  of  Entry." 

EQUITABLE  ASSETS, 

for  payment  of  decedent's  debts,  1058. 

EQUITABLE  ASSIGNMENT, 
see  "Subrogation." 

EQUITABLE  CONVERSION, 
see  "Conversion,  Equitable." 

EQUITABLE  EASEMENT, 
nature,  762. 

EQUITABLE  ESTATES   AND   INTERESTS, 

nature  and  creation,  218,  219. 
limitation  of  fee  simple  in,  47. 
mortgage  of,  1171. 
subject  to  rule  in  Shelley's  case,  312. 

rule  against  perpetuities,  354. 

judgment  lien,  1309. 
dower  and  curtesy  in,  432,  492. 

see,  also,  "Trusts." 


1504 


INDEX. 


[references  are  to  pages.] 

EQUITABLE  LIENS, 

nature,  1278. 

express  charges  on  land,  1279. 

agreements  for  security,  1282. 

agreement  to  give  mortgage,  1283. 

defective  mortgage,  1284. 

deposit  of  title  deeds,  1284. 

for  improvements  on  another's  land,  1286. 

for  owelty  of  partition,  1287. 

for  price  of  land,  1287. 

vendor's  lien,  when  arises,  1287. 

persons  affected  by,  1289. 

transfer,  1290. 

waiver,  1291. 

express  reservation,  1292. 

before  conveyance,  1293. 
vendee's  lien,  1294. 

EQUITABLE  JOINTURE, 
nature,  460,  463. 

EQUITABLE  MORTGAGE, 
nature,  1282. 

EQUITABLE  OWNERSHIP, 

see  "Equitable  Estates  and  Interests";   "Trustee";  "Trusts. 

EQUITABLE  POWERS, 
nature,  609. 

EQUITABLE  SEPARATE   ESTATE, 
of  married  woman,  413,  1138,  1141. 

EQUITABLE  TITLE, 

within  recording  acts,  1078. 

EQUITABLE  WASTE, 
nature,  559,  568,  570. 

EQUITIES, 

on  assignment  of  mortgage,  1230. 


INDEX.  1505 

[kkkerences  ake  to  pages.] 

EQUITY, 

uses,  197. 

trusts,  217. 

acts  in  personam,  221. 

acts  in  rem  by  force  of  statute,  245,  1061. 

compensation  for  improvements,  553. 

relief  against  forfeiture,  186. 

remedy  for  rent,  804. 

determination  of  boundary,  582. 

partition  proceedings,  405. 

powers,  aider  of  defective  execution,  635. 

sale  of  decedent's  land,  1059. 

foreclosure  of  mortgage,  1257,  1260. 

creditors'  suit,  1057,  1059. 

equitable  jointure,  460,  463. 

restrictions  on  use  of  land,  762. 

priorities  and  notice,  1075. 

equity  to  a  settlement,  413. 

wife's  separate  estate,  413. 

EQUITY  OF  REDEMPTION, 

double  meaning  of  term,  1166,  1167. 
clogging  right  of  redemption,  1170. 
dower  in,  434. 
transfer  by  mortgagor,  1214. 

to  mortgagee,  1215. 

transferee's  personal  liability,  1218,  1219. 
right  to  question  mortgage,  1221. 

of  part  of  land,  liability  in  inverse  order,  1221. 

transferee  party  to  foreclosure,  1265. 
dower  in,  434. 

see  "Mortgages." 

EQUITY  TO  A  SETTLEMENT, 
of  wife,  nature,  413. 

ESCHEAT, 

nature  of,  26,  274,  1050. 
on  failure  of  heirs,  1049. 
for  alienage,  1050. 
effect  on  dower  right,  430. 

Real  Prop.— 95. 


1506  INDEX. 

[references  are  to  pages.] 

ESCROW, 

meaning  of  term,  931. 
rights  of  bona  fide  purchaser,  932. 
intervening  creditors,  932. 

ESTATE, 

theory,  37. 

limitation  of,  38. 

classification,  38. 

of  freehold,  38,  39,  41. 

less  than  freehold,  38,  39,  80. 

see  "Determinable  Fee";  "Equitable  Estate";  "Estate  in  Fee 
Simple";  "Estate  in  Fee  Tail";  "Estate  for  Life";  "Estate 
for  Years";  "Estate  on  Special  Limitation";  "Estate  on 
Condition";  "Future  Estates";  "Remainders";  "Rever- 
sions"; "Tenancy  at  Will";  "Tenancy  from  Year  to  Year"; 
"Tenancy  by  Sufferance." 

ESTATE  FOR  LIFE, 

creation,  45,  71. 

reservation  on  grant  in  fee,  321. 
estate  pur  autre  vie,  7l,  72,  77. 
tenant's  rights  of  enjoyment,  72,  559. 
waste  by  tenant,  559. 
alienation  by  tenant,  72,  1140. 
repairs  and  improvements,  74. 
incumbrances  and  taxes,  75. 
merger,  76. 

termination,  right  to  crops,  74,  523. 
remainder  after,  279. 
apportionment  of  rent,  784. 
subject  to  special  limitation,  191. 
determinable  at  will,  137,  138. 

see,  also,  "Curtesy";  "Dower";  "Emblements";  "Fixtures"; 
"Remainders";  "Waste." 

ESTATE  FOR  YEARS, 

nature,  82. 

origin  and  history,  83. 

passes  to  personal  representative,  84. 

creation,  usually  by  lease,  84. 

necessity  of  writing,  85,  86. 

contract  for  lease,  89. 
entry  by  lessee,  90. 


INDEX.  15U7 

[references    are    to    I'AGES.] 

ESTATE  FOR  YEARS— Cont'd. 

certainty  of  term,  91. 

subject  to  special  limitation,  191. 

to  commence  in  future,  92. 

right  to  possession,  92. 

covenants,  express  and  implied,  93,  95. 

transfer,  106,  1142. 

covenants  running  with   land,  115. 

termination,  how  effected,  130. 

notice  unnecessary,  131. 

forfeiture,  133-135. 

right  to  fixtures,  548. 

emblements,  524. 
waste  by  tenant,  560,  571. 
no  dower  in,  429. 
surrender,  852,  854. 

see,  also,  "Emblements";  "Estovers";  "Eviction  of  Tenant"; 
"Landlord  and  Tenant";  "Lease";  "Reversions";  "Sur- 
render"; "Waste." 

ESTATE  IN  FEE  SIMPLE, 

nature,  43. 

limitation  in  conveyance,  44. 

in  devise,  49. 
restrictions  on  transfer  of,  51,  1135. 
rights  of  user,  52,  559. 
in  minerals,  517. 
defeasance  by  executory  limitation,  324. 

ESTATE  IN  FEE  TAIL, 

nature,  55,  66. 

classification,  56. 

after  possibility  of  issue  extinct,  80. 

statutory  abolition  and  modification,  56. 

limitation,  57. 

use  of  word  "children,"  59. 
"issue,"  61. 

failure  of  issue,  62. 
in  what  things  may  exist,  65. 
how  barred,  66. 

succession  on  tenant's  death,  68. 
clause  of  cesser,  191. 
rights  of  user,  559. 
remainder  after,  278,  279. 


1508  INDEX. 

[REFEEENCES    ABE    TO    PAGES.] 

ESTATE  IN  REMAINDER, 

see  "Remainders";   "Contingent  Remainders." 

ESTATE  IN  REVERSION, 

see  "Reversions." 

ESTATE  ON  CONDITION, 

nature,  157. 

see  "Conditions." 

ESTATE  ON  SPECIAL  LIMITATION, 

nature,  188. 

see  "Special  Limitation,  Estate  on." 

ESTOPPEL, 

by  representation,  1045. 

transfer  of  after-acquired  title  by,  1040,  1080. 

contingent  remainder,  306. 

executory  interest,  342. 
to  deny  landlord's  title,  121. 

existence  of  easement,  717. 

validity  of  conveyance,  869. 

title,  to  defeat  dower,  442. 
to  question  boundary  line,  586. 
to  claim  dower,  466. 

ESTOVERS, 

tenant's  rights  as  to,  566. 
right  of  profit  in,  745. 

EVICTION  OF  TENANT, 

what  constitutes,  126. 
under  paramount  title,  126,  135,  909. 
by  landlord,  127. 
constructive,  911. 
breach  of  covenant  by,  97,  909. 
effect  on  liability  for  rent,  130,  783,  786,  792. 
as  terminating  estoppel  of  tenant,  125. 

EVIDENCE, 

of  mortgage  character  of  conveyance,  1179. 
dedication  of  land,  974. 


INDEX.  1509 

[references  are  to  pages.] 
EXCAVATIONS, 

on  land,  injury  to  adjoining  owner,  668,  690. 

EXCEPTION, 

nature,  872. 

distinguished  from  reservation,  872. 

creation,  872,  873. 

of  easement  or  right  of  profit,  704,  874,  875. 

crops  or  trees,  526,  529. 

minerals,  517. 

fixtures,  545. 

EXCHANGE, 

at  common  law,  857. 

dower  in  exchanged  lands,  427. 

EXECUTION, 

of  conveyance,  918. 
will,  944,  946,  950. 
power,  611,  638. 

EXECUTION,  WRIT  OF, 

levy  on  land  under,  1053,  1054. 

by  extent,  1054. 
interests  subject  to  levy,  1054,  1195. 
homestead  exemption,  1121-1135. 
levy  on  growing  crops,  527. 
sale  under,  1054,  1055. 

not  judicial,  1057. 

irregularities,  1056. 

transfer  to  purchaser,  1056. 

free  from  adverse  claims,  1097. 
lien  of,  nature,  1318. 
priorities,  1319. 

EXECUTORS  AND  ADMINISTRATORS, 

testamentary  powers  of  sale,  605,  612,  615. 

joint  powers,  by  whom  exercised,  623. 

administrator  c.  t.  a.,  succession  to  express  power,  621. 

death  of  joint  executor,  survival  of  power,  625. 

sale  of  land  to  pay  debts,  1058. 

right  to  foreclose  mortgage,  1264. 

duty  to  pay  mortgage,  1245. 


1510  INDEX. 

[references  are  to  pages.] 

EXECUTORY  DEVISE, 

nature,  322,  324,  327,  329. 

not  preceded  by  freehold,  323. 

divesting  previous  estate,  324. 

construed  as  remainder,  if  possible,  325. 

remainder  or  executory  devise  according  to  event,  327. 

construed  in  favor  of  vesting,  333. 

power  of  alienation  in  first  taker,  effect,  330. 

see,  also,  "Executory  Interest";   "Executory  Limitation." 

EXECUTORY  INTEREST, 

power  of  alienation  in  first  taker,  effect,  330. 

destruction  by  tenant  in  tail,  330. 

alternative  limitations,  337. 

cross  limitations,  338. 

failure  of  preceding  limitation,  339. 

transfer,  341,  342. 

descent  or  devise,  342. 

see,  also,  "Executory  Devise";   "Executory  Limitation." 

EXECUTORY  LIMITATION, 

nature,  318,  324. 

on  failure  to  dispose  of  land,  332. 

effect  of  failure,  340. 

on  dower,  431. 

on  curtesy,  492. 

see,  also,  "Executory  Devise";   "Executory  Interest." 

EXECUTORY  TRUST, 
nature,  237,  312. 

EXEMPTIONS, 

from  execution,  see  "Homestead." 

EXONERATION, 

of  land,  mortgage  paid  from  decedent's  personalty,  435,  1245. 
of  person  paying  mortgage  debt,  1222. 

EXPULSION, 

of  tenant  holding  over,  156. 

EXTENT, 

execution  by,  1054. 


INDEX.  1511 


[rekerences  are  to   taoeb.] 
EXTINGUISHMENT. 

of  power,  640. 

easement,  731. 
right  of  profit,  747. 
highway,  817. 
mortgage,  1235,  123«. 
see  "Merger." 


FAILURE   OF   ISSUE, 

limitation  over  on,  62,  278,  302,  329. 
remoteness,  357,  358. 

FEALTY, 

incident  of  tenure,  25. 

FEE  SIMPLE, 

see  "Estate  in  Fee  Simple." 

FEE  TAIL, 

see  "Estate  in  Fee  Tail." 

FELONS, 

right  to  hold  and  transfer  land,  1161. 

FEME  COVERT, 

see  "Coverture";  "Husband  and  Wife";   "Married  Women." 

FENCES, 

landowner's  duty  to  fence,  587. 
partition  fences,  694. 

contractual  obligation  to  maintain,  694,  757. 

statutory  obligation  to  maintain,  694. 

prescriptive  obligation  to  maintain,  1029. 
tenant's  duty  to  repair,  570. 
across  right  of  way,  729,  731. 

FEOFFMENT, 

see  "Livery  of  Seisin." 

FEOFFEE  TO  USES, 

meaning  of  term,  198. 


1512  INDEX. 

[references  are  to  pages.] 
FERRY, 

franchise,  11. 

FEUDAL  SYSTEM, 

nature  and  incidents,  17. 

FINES, 

nature  of  proceeding,  66,  849. 

FIRE, 

injury  to  leased  premises,  tenant's  liability,  101,  572. 

right  to  rent,  135,  791. 
injury  to  premises  sold,  party  sustaining  loss,  264. 

FIRM, 

see  "Partnership." 

FISH  AND  FISHING, 

ownership  of  fish,  600. 

right  to  catch  fish,  601. 

rights  of  public,  601. 

rights  in  another's  land,  745. 

public  rights  in  private  land,  592,  825. 

FIXTURES, 

general  theory,  535. 

mode  of  attachment  to  land,  538. 

correspondence  between  article  annexed  and  use  of  land,  540. 

accessories  to  fixtures,  539. 

agreement  as  to  effect  of  annexation,  ^541. 

upon  another's  land,  536,  553. 

pass  on  sale  or  conveyance  of  land,  543,  546. 

under  mortgage  of  land,  543,  547,  550. 
succession  on  owner's  death,  547. 
removable  fixtures,  547. 
for  trade  purposes,  548. 

ornamental  purposes,  549. 

domestic   purposes,   549. 

agricultural  purposes,  549. 
removal  during  tenancy,  551. 
subject  to  chattel  mortgage,  542,  545. 


INDEX.  1513 


[references  are  to  pages.] 

FIXTURES— Cont'd. 

severance,  545. 

injuries  to,  by  tenant,  567. 

party  walls  as,  693. 

FLATS, 

see  "Shore." 

FLOWAGE, 

of  another's  land,  as  legal  injury,  659,  663. 
easement  of,  668. 
statutory  right,  659. 
prescriptive  right,  1029. 

FLUES, 

in  party  wall.  728. 

FORCIBLE   ENTRY, 
by  landlord,  156. 

FORECLOSURE  OF  MECHANIC'S  LIEN, 
nature  of  proceeding,  1303. 

FORECLOSURE  OF  MORTGAGE, 

nature  and  purpose,  1166,  1252. 

for  breach  of  condition,  180,  182,  185. 

nonpayment  of  installment,  1253. 
taxes,  1254. 
insurance,  1254. 
limitations  and  laches,  1254. 
strict  foreclosure  in  equity,  1257. 
by  entry,  1258. 

writ  of  entry,  1259. 
equitable  proceeding  for  sale,  1260. 

sale  under  power,  1268,  1271. 

scire  facias,  1275. 
parties  to  proceeding,  1262. 
attorney's  fees,  stipulation  for  payment,  1276. 
personal  liability,  enforcement,  1276. 
adverse  claims  not  adjudicated,  1267. 
invalid  sale,  subrogation  of  purchaser,  1249,  1265. 
effect  on  dower,  447. 


2514  INDEX. 

[references  are  to  pages.] 
FORFEITURE, 

for  breach  of  express  condition,  133,  174.  180. 

waste,  74,  575,  1052. 

disclaimer  of  landlord's  title,  1052. 

illegal  use  of  leased  land,  135. 

nonpayment  of  taxes,  1066. 

violation  of  revenue  law.  1051. 

alienage,  1050,  1058. 

tortious  feoffment,  72. 

crime,  1050. 
by  life  tenant,  72,  1052. 

tenant  for  years,  133-135,  1052. 

alien,  1050,  1058. 

person  convicted  of  crime,  1050. 

enemy,  1051. 

corporation,  1051. 
waiver,  178. 
proceeding  to  enforce,  180,  1051. 

FRANCHISES, 

as  real  things,  9. 

FRANKALMOIGN, 

tenure  in,  21. 

FRAUD, 

in  issue  of  government  patent,  844. 

obtaining  conveyance,  879. 

execution  of  power,  638. 
constructive  trust  arising  from,  233. 
conveyance  in  fraud  of  dower,  444,  445. 

curtesy,  495. 

creditors,  452,   1109. 

subsequent  purchaser,  1114. 

FRAUDS,  STATUTE  OF, 
see  "Statute  of  Frauds." 

FRAUDULENT  CONVEYANCE, 
see  "Fraud." 


INDEX.  1515 

[referencks  are  to  pages.] 


FREEHOLD, 


estates  of,  38,  39,  41. 

as  signifying  life  estate,  39. 

abeyance  of,  278,  299. 

FRUCTUS  INDUSTRIALES, 

see  "Crops." 

FRUCTUS  NATURALBS, 

see  "Timber";  "Trees";  "Vegetable  Products." 

FRUIT, 

as  fructus  naturales,  522. 

FURTHER  ASSURANCE, 
covenant  for,  911. 

FUTURE  ADVANCES, 

mortgage  to  secure,  1185. 

FUTURE  ESTATES  AND  INTERESTS. 

at  common  law,  278,  279. 

remainders,  274. 

reversions,  269. 

rights  of  reverter,  272. 

future  terms  for  years,  92. 

future  uses,  210,  325. 

executory  interests,  317. 

under  state  statutes,  343. 

in  terms  for  years,  338. 

acceleration,  304,  339. 

mortgage  of,  1171,  1172. 

dower  in,  438. 

curtesy  in,  493. 

remoteness,  344. 

see,  also,  "Contingent  Remainders";  "Executory  Devise"; 
"Executory  Interests";  "Executory  Limitations";  "Re- 
mainders"; "Reversions";  "Rights  of  Entry";  "Rights  of 
Reverter";  "Rule  Against  Perpetuities";  "Rule  in  Shel- 
ley's Case." 


1516  INDEX. 

[references  are  to  pages.] 

G. 

GAME, 

see  "Animals." 

GAMING  DEBT, 

mortgage  to  secure,  1190. 

GAS, 

beneath  the  surface,  ownership,  518. 

GAVELKIND, 

tenure,  22,  26. 

GENERAL  FIELDS, 

in  New  England,  822. 

GIFT, 

of  land,  validity,  877. 

when  construed  as  advancement,  992. 

GOVERNMENT, 

land  belonging  to,  829. 

GRANT, 

at  common  law,  35,  849. 
things  lying  in  grant,  35. 
by  United  States,  832. 

state,  838. 
of  easements,  700,  705. 

profits  a  prendre,  746. 
implied  grant,  705. 
seal  necessary,  700,  849,  850. 

see,  also,  "Conveyances";    "Easements." 

GRANTOR  AND  GRANTEE, 

adverse  possession  between,  1010,  1013. 
grantee's  liability  for  mortgage,  1216,  1219. 
designation  in  conveyance,  867,  871. 

see  "Conveyances";  "Personal  Capacity. 


INDEX.  1517 

[references  are  to  pages.] 


GRASS, 

as  fructus  natiirales,  522. 

GREAT  LAKES, 

land  under,  ownership,  595. 

GREAT  PONDS, 

land  under,  ownership,  596. 

GROWING  CROPS, 

see  "Crops";   "Vegetable  Products." 

GUARDIAN, 

sale  of  infant's  land,  1060. 

lunatic's  land,  1060. 
holding  over,  not  tenant  by  sufferance,  150. 


H. 


HABENDUM, 


purpose  of,  864,  870. 

construction  in  connection  with  premises,  870. 

HALF  BLOOD, 

rights  of  inheritance,  987. 

HEIRLOOMS, 
nature,  14. 

HEIRS, 

necessity  of  word,  estate  in  fee  simple,  44,  49. 

in  exception,  873. 

in  reservation,  873,  876. 

in  release,  851. 
use  of  word  in  habendum,  871. 
contingent  remainder  to,  283. 
who  are,  under  laws  of  descent,   981. 
failure  of,  escheat,  1050. 
take  subject  to  decedent's  debts,  1321. 
right  to  payment  of  mortgage  from  personalty,  1245. 

see,  also,  "Descent." 


1518  INDEX. 

[keferences  are  to  pages.] 
HEIRS  OF  THE  BODY, 

limitation  to,  estate  in  fee  tail,  57. 

HERBAGE, 

right  to,  in  another's  land,  743. 

HEREDITAMENTS, 
what  are,  6. 

HIGHWAY, 

nature,  806. 

methods  of  creation,  807. 

statutory  proceedings  for,  808. 

dedication,  971,  974. 

prescription,  1032. 

rights  of  owner  of  fee,  808. 

compensation  for  highway  use,  811,  813,  814. 

additional  servitude,  811. 

easements  in,  814. 

change  of  grade,  815. 

rights  of  deviation,  816. 

as  breach  of  covenant  against  incumbrances,  905. 

boundary  of  land  conveyed,  893. 
extinguishment,  817,  819. 
vacation,  817. 
abandonment,  818. 
reverter  to  original  owner,  819. 
turnpike,  820. 

see  "Dedication." 

HOLDING  OVER, 
by  tenant,  149. 

HOLOGRAPHIC  WILL, 

nature  and  essentials,  951. 

HOMAGE, 

incident  of  tenure,  25. 

HOMESTEAD, 

not  properly  an  estate,  1121. 
persons  entitled,  1122. 


INDEX.  1519 

[KEl'KIiENtES    AKE    TO    PAGES.] 

HOMESTEAD— Cont'd. 

land  in  which  the  right  exists,  1124. 
character  of  claimant's  interest,  1127. 
debts  to  which  exemption  extends,  1128. 
claim  and  selection,  1131. 
transfer  of  the  homestead  property,  1131. 
abandonment,  1134. 
waiver  of  rights,  1134. 
rights  of  wife^  502,  504. 

surviving  consort,  506. 

children,  512. 
probate  homestead,  511. 
entry  on  public  land,  834. 
federal  homestead  exemption,  1135. 

HOPS. 

as   fructus   industriales,  522. 

HOUSE, 

as  fixture  to  land,  539,  541. 

grant  of,  as  passing  land,  882. 

divided  ownership  of,  554,  691,  726. 

lease  of,  warranty  of  fitness,  99. 

support  of,  by  adjoining  land  or  building,  670,  672,  690,  712,  726. 

destruction,  effect  on  rent,  791. 

waste  by  tenant,  567,  570. 

see,  also,  "Building";  "Fixtures";  "Lateral  Support";  "Par- 
ty Walls";  "Waste." 

HUNTING. 

right  not  incident  to  right  of  navigation,  828. 

HUSBAND  AND  WIFE, 

resulting  trust  as  between,  232. 

conveyances  by  and  between,  450,  1144,  1148. 

conveyances  to,  379. 

as   coheirs,    380. 

husband's  rights  in  wife's  land,  at  common  law,  410. 

equity  to  a  settlement,  413. 

equitable  separate  estate,  413. 

by  statute,  415. 
survivor  as  heir,  485,  501,  985. 
.    homestead  rights,  502,  504,  1132. 


1520  INDEX. 

[referexces  are  to  pages.] 

HUSBAND  AND  WIFE— Cont'd. 

community  property,  383,  408. 
tenancy  by  entireties,  379. 
wife  acting  by  attorney,  939,  1145. 
acknowledgment  by  wife,  925. 

see,  also,  "Curtesy";    "Dower";    "Homestead";    "Marriage' 
"Married  Women";  "Tenancy  by  Entireties." 


ICE, 

ownership  of,  598. 
rights  of  public,  599. 
real  or  personal,  599. 

ILLEGALITY, 

of  condition,  168. 

conveyance,  1108. 
mortgage,    1190. 

ILLEGITIMATE  CHILDREN, 

inheritance  by  and  from,  990. 

IMPEACHMENT, 

of  waste,  see  "Waste." 

IMPLIED  CONDITIONS, 
nature,  161. 

IMPLIED  COVENANTS, 

on  conveyance,  901. 
lease,  94. 
partition,  404. 

IMPLIED   GRANT, 

of  easement,  705. 

way  of  necessity,  714,  721. 

IMPLIED  RELEASE, 
of  easement,  735. 

IMPLIED  RESERVATION, 
of  easement,  711. 


INDEX.  1521 

[refekences  are  to  pages.] 
IMPLIED  TRUST, 
nature,  227,  233. 

IMPOSSIBILITY, 

of  condition,  168. 

IMPROVEMENTS, 

on  another's  land,  compensation,  553. 
by  life  tenant,  74,  75. 

cotenant,  396,  1286. 

mortgagee,  1206. 
lien  for,  1286,  1323. 
dower  in,  476. 
mortgage  of,  1171. 

INCAPACITY, 

of  married  women,  1144. 

infants,  1147. 

corporations,  1156. 

aliens,  1158. 

criminals,  1161. 
mental,  1152. 

INCHOATE  DOWER, 

nature  of  right,  466. 
see  "Dower." 

INCORPOREAL  THINGS, 

nature  of,  7,  38. 
grant  of,  700,  849,  920. 
lease  of,  sealing,  850. 
dower  in,  428. 
rent  of,  774. 

see    "Basements";    "Franchises";    "Highways";    "Profits    a 
Prendre";   "Rent." 

INCUMBRANCES,  , 

covenant  against,  903. 
payment  by  life  tenant,  75. 

see,  also,  "Liens";   "Mortgages." 

Real  Prop.— 96. 


1522  INDEX. 

[BEFEEENCES    ABE   TO   PAGES.] 

INDEMNITY  LANDS, 

in  case  of  railroad  grant,  835. 

INDENTURE, 

nature  of,  864. 

acceptance  of  deed  poll,  effect,  750. 

INDEX, 

of  records,  1082. 

INFANTS, 

who  are,  1147. 

conveyances  by,  are  voidable,   1147. 

how  avoided,  1149. 

affirmance,  1150. 
conveyances  to,  936,  937,  1152. 
wills  by,  1152. 

infant  married  woman,  1148,  1151. 
as  trustees,  226,  1148. 
adverse  possession  against,  1003. 
prescription  against,  1023. 

INHERITANCE, 

persons  entitled  by,  981. 
by  and  from  aliens,  1157. 
by  murderer  of  ancestor,  1161. 
see  "Descent";   "Heirs." 

INJUNCTION, 

against  waste,  559,  568,  570,  571,  577,  580. 
waste  by  mortgagor,  1211. 
waste  by  mortgagee,  1213. 
disturbance  of  easement,  730. 
nuisance,  674. 
use  of  land  in  violation  of  agreement,  762. 

INJURIES, 

to  cattle,  liability  of  railroad,  589. 
land  previously  sold,  264. 
natural  rights  of  landowner,  673. 
mortgaged  land,  1211. 
see  "Waste." 


INDEX.  1523 

"BEFERENCES    ABE  TO   PAGES.] 

INSANE  PERSONS, 

conveyances  by,  are  void  or  voidable,  1154,  1155. 

how  avoided,  1149. 

affirmance,  li54. 

bona  fide  purchasers,  1154. 
conveyances  to,  936,  937,  1155. 
wills  by,  1156. 

adverse  possession  against,  1003. 
prescription  against,   1023. 
sales  of  land  of,  1060. 

INSOLVENCY, 

limitation  over  on,   1137,  1140. 
assignee  in,  election  as  to  lease,  110. 

INSTANTANEOUS    SEISIN, 
nature,  424. 

INSURANCE, 

by  mortgagor,  1207. 
mortgagee,  1208. 
premiums  paid  by  mortgagee,  reimbursement,  1206. 
nonpayment   of   premiums,   foreclosure,   1254. 
mortgage  not  alienation,  1208. 
subrogation  of  insurer  to  mortgagee's  rights,   1210. 

INTENTION, 

of  annexation  of  article  to  land,  537. 

INTERESSE  TERMINI, 

what  constitutes,  90. 

transfer  of,  90. 

cannot  be  surrendered,  90,  853. 

INTESTATE  SUCCESSION, 
see  "Descent." 

INTOXICATION, 

incapacitating  grantor,  1153. 

IRRIGATION, 

appropriation  of  water  of  stream  for,  656. 
construction  of  works  on  another's  land,  716. 


1524  INDEX. 

[references  are  to  pages.] 
ISLANDS, 

formation,  title  to  soil,  1036,  1038. 

ISSUE, 

meaning  of  word,  61. 

word  of  purchase  or  limitation,  61.  * 

necessity  for  curtesy,  490. 
see  "Failure  of  Issue." 

J- 

JOINDER, 

in  action  by  cotenants,  401. 

JOINT  EXECUTORS, 

survivorship,  623. 

JOINT  OWNERSHIP, 

see  "Concurrent  Ownership";  "Coparcenary";  "Community 
Property";  "Partnership  Property";  "Joint  Tenancy";  "Ten- 
ancy by  Entireties";  "Tenancy  in  Common." 

JOINT  TENANCY, 

nature  and  creation,  371. 

right  of  survivorship,  372. 

severance,  373. 

termination,  373. 

not  favored  by  courts,   374. 

modification  and  abolition  by  statute,  375. 

joint  tenant,  adverse  possession  by,  389. 

ouster  of,   389,  392. 

accounting  by,  391. 

contribution  by,  396. 

contract  or  conveyance  by,  393. 

improvements  by,  396. 

repairs  by,  397. 

payment  of  incumbrance,  398. 

acquisition  of  adverse  title,  398. 

waste  by,  579. 
action  by  joint  tenants,  401. 
partition,  374,  403,  405. 
release  between,  851. 


INDEX.  1525 

[BEFEBENCES    ABE   TO   PAGES.] 

JOINT  TENANCY— Cont'd. 

widow  of  joint  tenant,  dower,  440. 
husband  of  joint  tenant,  curtesy,  494. 
in  case  of  joint  trustees,  244,  376. 
joint  mortgagees,  1264. 

JOINT  TRUSTEES, 

survivorship,  244,  376,  624. 
who  may  exercise  power,  622. 

JOINTURE, 

as  a  bar  to  dower,  459. 
legal  and  equitable,  460. 
statutory  provisions,  461. 

JUDGMENT, 

for  dower,  483. 

taxes,  prerequisite  to  sale,  1066. 
sale  of  land  under,  1053,  1054. 
lien  of,  nature,  1305. 

character  of  judgment,  1306. 

interests  subject  to,  1308. 

priorities,  1311. 

see,  also,  "Decree." 

JUDICIAL  PROCESS, 

transfers  under,  1053. 

see  "Creditors'  Suit";  "Execution";   "Judicial  Sales." 

JUDICIAL  SALES, 

under  execution,  1053. 

in  equity  at  instance  of  creditors,  1057. 

of  decedent's  land,  1057. 

of  infant's  land,  1060. 

of  lunatic's  land,  1060. 

in  partition  proceeding,  407,  1060. 

proceeds  treated  as  land,  260. 

dower  in  proceeds,  436,  467. 

L. 

LABORERS, 

lien  of,  1297,  1322. 


1526  INDEX. 

[references  are  to  pages.] 
LACHES, 

in  assertion  of  claim  to  dower,  481. 
foreclosing  mortgage,  1254. 
redeeming  from,  1240. 

LAKES, 

land  under,  ownership,  595. 

LAND, 

as  subject  of  property  rights,  2,  6,  15. 
classes  of  rights  in,  4,  5. 
property  in,  above  and  below  surface,  515. 
separate  property  in  surface  and  minerals,  517. 
conveyance  of,  includes  vegetation,  526. 

fixtures,  546. 

manure,  555. 
description  in  conveyance,  881. 
not  appurtenant  to  land,  898. 
under  water,  ownership,  590. 

description  in  conveyance,  883. 

LANDLORD  AND  TENANT, 

character  of  relation,  85. 
relation  created  by  lease,  84. 
in  case  of  estate  for  years,  80. 

tenancy  at  will,  137. 

tenancy  from  year  to  year,  87,  144. 

tenancy  at  sufferance,  149. 

cultivation   on   shares,   533. 
tenant  holding  over,  rights  of  landlord,  150. 

forcible  expulsion,  156. 
termination  of  relation,  130,  141,  147,  192. 
surrender  of  leasehold,  854. 
forfeiture  by  tenant,  133,  135,  192. 
rights  to  possession  of  premises,  92. 
tenant  unable  to  obtain  possession,  789. 
privity  of  estate,  108,  115,  795. 
covenants  between,  93,  115. 
eviction  of  tenant,  127. 
condition  and  use  of  premises,  98,  102. 
disclaimer  of  title  by  tenant,  134. 
estoppel  to  deny  title,  121,  140,  147. 
assignment  of  lease,  106,  114. 


INDEX.  1527 

[references  are  to  pages.] 
LANDLORD  AND  TENANT— Cont'd. 

sublease,  113. 

transfer  of  reversion,  111. 

tenant's  right  to  emblements,  13G,  143,  150,  524. 

minerals,  519,  561. 

estovers,  566. 

remove  fixtures,  547. 

cut  timber,  563. 

remove  manure,  556. 
mode  of  cultivation  by  tenant,  566. 
repairs  by  tenant,  100,  570,  571. 
waste  by  tenant,  560,  567,  571. 
injuries  from  condition  of  premises,  102,  103. 
renewal  of  lease,  effect  on  fixtures,  552. 
rent,  reservation,  105,  773,  774. 

extinguishment  of  liability  for,  788. 

action  for,  794,  798. 

distress,  799. 
landlord's  lien,  1322. 
surrender  of  leasehold,  854. 
possession  of  tenant,  notice  of  landlord's  claim,  1089. 

see,  also,  "Assignment";  "Distress";  "Estate  for  Years"; 
"Eviction";  "Lease";  "Rent";  "Surrender";  "Tenancy  at 
Will";  "Tenancy  from  Year  to  Year";  "Tenancy  by  Suf- 
ferance"; "Waste." 

LATERAL  SUPPORT, 

of  land,  natural  right,  668. 

impairment  by  highway,  671. 

injury  to  building  by  withdrawal,  670. 

easement  affecting,  690. 
of  building,  no  natural  right,  670. 

easement,  690. 

by  adjoining  building,  690,  712,  1031. 

prescriptive  right,  1031. 

LEASE, 

what  constitutes,  84,  850. 
contract  for  lease,  89. 
necessity  of  writing,  85,  850. 
entry  by  lessee,  90. 
of  land  and  chattels,  774. 
mineral  rights,  519. 


1528  INDEX. 

[EEFEEENCES    ABE   TO   PAGES.] 

LEASE— Cont'd. 

trees,  529. 

mortgaged  land,  1204. 
incorporeal  things,  850. 
condition  in,  133. 
express  covenants  in,  93,  101. 
implied  covenants  in,  94. 
assignment,  106,  114. 
sublease,  113. 
termination,  130. 

see,  also,  "Distress";  "Estate  for  Years";  "Eviction"; 
"Landlord  and  Tenant";  "Surrender";  "Tenancy  at 
Will";  "Tenancy  from  Year  to  Year." 

LEASE  AND  RELEASE, 
nature,  207,  859,  861. 

LEASEHOLD  ESTATES, 

see  "Estate  for  Years";    "Tenancy  from  Year  to  Year";    "Ten- 
ancy at  Will." 

LEGACIES, 

charged  on  land,  1279. 

LEVY, 

of  attachment,  1315. 

execution,  1053,  1054. 

LICENSE, 

to  enter  on  and  use  land,  678. 
does  not  confer  rights  in  rem,  678. 
creation,  680. 

by  sale  of  growing  trees,  529,  531,  683. 

by  oral  grant  of  right  of  profit,  746. 
revocability,  680. 
mode  of  revocation,  684. 
coupled  with  interest,  682. 
expenditures  on  strength  of,  681. 
assignment,  684. 
to  take  minerals  from  land,  746. 

annex  article  to  land,  preserves  chattel  character,  542. 

violate  condition,  176. 


INDEX.  1529 

[refekences  are  to  pages.] 


LICENSE— Cont'd. 

effect  as  suspending  natural  right,  673. 

as  extinguistiing  easement,   738. 
no  dower  in,  429. 

see,  also,  "Easements";    "Minerals." 


LIEN, 


mortgage,  1163. 

equitable,  1278. 

statutory,  1296. 

express  charge  on  land,  1279. 

agreement  for  security,  1282. 

agreement  to  give  mortgage,  1283. 

defective  mortgage,  1284. 

deposit  of  title  deeds,  1284. 

for  improvements  on  another's  land,  1286,  1323. 

for  owelty  of  partition,  1287. 

for  price  of  land,  1287. 

vendor's  lien,  when  arises,  1287. 

persons  affected  by,  1289. 

transfer,  1290. 

waiver,  1291. 

express  reservation,  1292. 
of  attachment,  inception,  1315. 

interests  subject  to,  1316. 

priorities,  1316. 
of  execution,  nature  of,  1318. 

priorities,  1319. 
of  taxes,  when  exists,  1319. 

interests  subject  to,  1320. 

time  of  inception,  1320. 
of  decedent's  debts,  1321. 
on  crops,  for  rent,  1322. 

for  supplies,  1322. 

for  labor,  1322. 
vendor's  lien  before  conveyance,  1293. 
vendee's  lien,  1294. 
mechanic's  lien,  nature,  1297. 

persons  entitled,  1297. 

contract  or  consent  of  owner,  1300. 

estate  or  interest  subject,  1300. 

priorities,  1301. 

time  of  attachment,  1302. 

assertion  and  enforcement,  1303. 


1530  INDEX. 

[REFEEENCES    ABE   TO   PAGES.] 

LIEN— Cont'd. 

release  or  waiver,  1304. 
judgment  lien,  nature,  1305. 

character  of  judgment,  1306. 

interests  subject  to,  1308. 

priorities,  1311. 
for  rent,  804,  1322. 

widow's  allowance,  1323. 
on  land  taken  for  public  use,  1073. 
creation  by  words  of  covenant,  751,  903,  904. 
proceedings  to  enforce,  1057. 
lienors  as  parties  to  foreclosure  of  mortgage,  1265,  1267. 

see,  also,  "Mortgages." 

LIFE  ESTATE, 

see  "Estate  for  Life." 

LIGHT, 

no  natural  right  to,  651. 
easement  of;  687,  706. 
obstruction  of,  651,  687,  706. 
implied  grant  of  easement,  706. 
prescriptive  right  to  easement,  1031. 

LIMITATION, 

words  of,  purpose,  38. 
fee  simple,  44. 
fee  tail,  57. 

see,  also,  "Special  Limitation." 

LIMITATIONS,  STATUTE  OF, 

adverse  possession  of  land  for  statutory  period,  995. 
prescriptive  user  of  land  for  statutory  period,  1019. 
barring  recovery  of  dower,  482. 

foreclosure  of  mortgage,  1254,  1256. 

redemption  from  mortgage,  1240. 

see,  also,  "Adverse  Possession";  "Prescription." 

LINES, 

see  "Boundaries." 


INDEX.  1531 

[rekkrences  are  to  pages.]    ■ 


LIS  PENDENS, 


doctrine  of,  1098. 

applicable  both  at  law  and  in  equity,  1098. 
statutory  provisions  for  record,  1099. 
suit  to  enforce  unrecorded  instrument,  1100. 

LITTORAL  OWNERS, 

right  to  shore,  592. 

access  to  shore,  597. 

erections  and  reclamations  by,  597. 

fishing,  592,  601,  825. 

see,   also,    "Riparian    Owners";    "Rivers";    "Tide   Waters"; 
^'Water." 

LIVERY, 

of  seisin,  34,  848. 
things  lying  in,  35. 

LIVE  STOCK, 

duty  to  fence  against,  587,  589. 

LOCAL  AND  TRANSITORY  ACTIONS, 
recovery  of  rent,  797. 

LOCATION, 

of  land  certificate,  840. 
mineral  claim,  838. 

LODGING  CONTRACT, 

does  not  create  tenancy,  92. 
equivalent  to  license,  679,  680. 

M. 
MALICE, 

in  use  of  land,  effect,  651,  667, 

MANORS, 

characteristics,  under  feudal  system,  22. 

MANUFACTURES, 

appropriation  of  water  for,  656,  657. 


1532  INDEX. 

[references  are  to  pages.] 
MANURE, 

passes  on  conveyance  of  land,  555. 

removal  by  tenant,  556. 

real  or  personal  property,  557. 

MAP, 

description  by  reference  to,  885. 

MARRIAGE, 

of  ward,  under  feudal  system,  25. 
estate  determinable  upon,  171,  191. 
estate  during,  191. 
conditions  in  restraint  of,  169. 
husband's  estate  during,  410. 
sufficiency  for  curtesy,  480. 

for  dower,  480. 
revoking  will,  962. 
settlement,  effect  on  dower,  459. 

see,  also,  "Community  Property";  "Curtesy";  "Dower"; 
"Homestead";  "Husband  and  Wife";  "Married  Women"; 
"Tenancy  by  Entireties." 

MARRIED  WOMEN, 

conveyances  by,  416,  1144,  1148. 

conveyances  to,  1145,  1146. 

wills  by,  1147. 

acting  by.  attorney,  939,  1145. 

acknowledgments  by,  925. 

purchase  in  name  of,  presumption,  232. 

as  trustees,  226. 

trusts  for,  212,  248,  413,  1138,  1141. 

homestead  rights,  502,  504,  1132. 

equitable  separate  estate,  413,  1138,  1141. 

statutory  separate  estate,  415. 

dower  rights,  417. 

inheritance  from  husband,  485,  985. 

community  property,  383,  408. 

tenancy  by  entireties,  379. 

adverse  possession  against,  1003. 

prescription  against,  1023. 

see,  also,  "Curtesy";  "Dower";  "Homestead";  "Husband  and 
Wife";   "Marriage";  "Tenancy  by  Entireties." 


INDEX.  1533 

[itEFERENCES    ARE    TO    PAGES.] 


MARSHALING, 

of  securities,  1249. 

inverse  order  of  alienation,  1223. 

decedent's  estate,  payment  of  mortgage,  1245. 

MASTER  AND  SERVANT, 
cultivation  on  shares,  534. 

MATERIALMEN, 

under  mechanic's  lien  law^  1299. 

MEANDER  LINES, 

on  waters,  under  government  survey,  884. 

MECHANICS'  LIENS, 

nature,  1297. 

persons  entitled  to,  1297. 

contract  or  consent  of  owner,  1300. 

estate  or  interest  subject,  1300. 

priorities,  1301. 

time  of  attachment,  1302. 

assertion  and  enforcement,  1303. 

release  or  waiver,   1304. 

MERGER, 

of  equitable  in  legal  estate,  246. 

estate  pur  autre  vie  in  life  estate,  77. 
estate  for  life,  76. 
estate  tail,  68. 
estate  for  years,  133. 

particular  estate,  effect  on  remainder,  297. 
rent,  in  land,  788. 
easement,  in  ownership,  734. 
mortgage,  in  ownership,  1250. 
see  "Surrender." 

MESNE  LORD, 

meaning  of  term,  19. 

MEXICAN  GRANTS, 

previous  to  treaty  of  cession,  841,  842. 


1534  INDEX. 

[references  are  to  pages.] 
MILLS, 

appropriation  of  water  for,  656,  657. 
statutory  rights  to  flow  land,  660,  716. 

MINERALS, 

sovereign  rights  to,  518. 
ownership  of,  516. 

in  federal  domain,  grant  of  rights,  836. 
exception  of,  from  conveyance,  517. 
separate  ownership  of  surface  and  minerals,  517. 
rights  to  take  from  another's  land,  519,  744,  746. 
leases  and  conveyances,  517,  519. 
license  to  extract,  746. 
rents  and  royalties,  520,  773. 
waste  in,  561. 
see  "Mines." 

MINES, 

dower  in,  426, 

mining  leases,  517,  519,  746. 
opening  as  waste,  561. 
In  federal  domain,  836. 
see  "Minerals." 

MISREPRESENTATIONS, 

trust  arising  from,  233. 
conveyance  obtained  by,  879. 
estoppel  by,  1045. 

MISTAKE, 

in  conveyance,  right  to  relief,  878. 

issue  of  patent  by  government,  844. 

revoking  will,  962. 

locating  boundary,  adverse  possession,  1013. 

MONElr, 

treated  as  land,  254. 
dower  In,  436. 
curtesy  in,  493. 


INDEX.  1535 

[references  are  to  pages.] 

MONUMENTS, 

description  by,  887. 
natural  and  artificial,  887. 
building  or  land  as,  887. 
waters  as,  890,  892. 
highways  as,  893. 
private  ways  as,  895. 
control  courses  and  distances,  888. 
see   "Boundaries";    "Description." 

MORTGAGES, 

historical  development,  1165. 

legal  theory,  1167,  1168. 

lien  or  equitable  theory,  1168,  1169. 

equitable  mortgages,   1282. 

successive  mortgages,  1172. 

to  secure  pre-existing  debt,  1183. 

future  advances,  1185,  1186. 

support,   1189. 
to  indemnify  surety,  1188. 
interests  subject  of,  rent,  1171. 

life  estate,  1171. 

estate  for  years,  1171. 

improvements,   1171. 

growing  crops,  1171. 

equitable  interests,  1171. 

future  acquisitions,  1172. 

fixtures  subsequently  annexed,  1173 

crops  to  be  planted,  1174. 
form  of,  necessity  of  writing,  1175. 

words  of  inheritance,  1175. 

description  of  land,  1175. 

description  of  obligation,  1184. 

execution  and  delivery,  1175. 

separate  defeasance,  1177. 

absolute  conveyance,  1178,  1182. 

sale  with  right  of  repurchase,  1181,  1182. 
record  of,  necessity,  1176. 

defeasance,  1178. 

assignment,   1232,   1234. 
consideration   unnecessary,   1183. 
parol  evidence  that  conveyance  is  mortgage,  1180. 
defeasance,  separate  instrument,  1177. 


1536  INDEX. 

[references   ABE   TO   PAGES.] 

MORTGAGES— Cont'd. 

oral,  1178. 
obligation  secured,  nonexisting  debt,  1183. 

pre-existing  debt,  1183. 

description,  1184. 

future  advances,  1185,  1186. 

change  in  amount,  1188. 

indemnity  to  surety,  1188. 

mortgagor's  personal  liability,  1189,  1275. 

support  of  another,  1189. 

illegality,  1190. 

partial  illegality,  1191. 

usury,  1192. 
of  land,  includes  trees  and  crops,  525. 

includes  fixtures,  543,  547,  1173. 

growing  trees,  530. 

crops  to  be  planted,  1174. 

improvements,  1171. 

chattels,  subsequent  annexation  to  land,  542. 

leasehold,  covenants  running  with  land,  1215. 
relation  not  fiduciary,   1198. 
right  to  possession  of  land,  1199. 

by  agreement,  1200. 
rents  and  profits,  right  to,  1201. 

accounting  by  mortgagee,  1202. 

receiver  for,  1201. 
lease  of  premises,  before  mortgage,  1204. 

after  mortgage,  1204. 

attornment  by  tenant,  1205. 
expenditures  by  mortgagee,  120C. 
repairs  and  improvements,   1206. 
insurance,  by  mortgagor,  1207. 

by  mortgagee,  1209. 
waste,  remedies  of  mortgagee,  1211. 

mortgagor,  1213. 
mortgagor  is  owner  of  land,  1167,  1194. 

personal  liability,  1189,  1276. 

may  convey  or  devise  land,  1194. 

consort  entitled  to  dower  or  curtesy,  434,  445,  447,  1195. 

interest  liable  to  execution,   1195. 

ejectment  by,  1197. 

right  to  possession  of  land,  1199. 

right  to  rents  and  profits,  1201. 

possession  not  adverse  to  mortgagee,  1011. 


INDEX.  1537 

[befeeences  aee  to  pages.] 
MORTGAGES— Cont'd. 

lease  of  land  by,  1204. 

insurance  by,  1207. 

injuries  to  land  by,  1211. 

remedies  for  injuries  to  land,  123. 
mortgagee,  as  bona  fide  purchaser,  1174. 

as  purchaser  for  value,  1184. 

collateral  advantage  to,   1192. 

has  legal  title  in  some  states,  1167,  1196. 

ejectment  by,  1196. 

not  trustee  of  mortgagor,  1198. 

purchasing  at  tax  sale,  1198. 

purchasing  outstanding  title,  1199. 

right  to  possession  of  land,   1199. 

accounting  for  rents  and  profits,   1202. 

annual  rests   in  accounting,   1203. 

expenditures  by,  1205. 

allowance  for  personal  services,  1206. 

repairs  and  improvements  by,  1206. 

insurance  by,  1209. 

injuries  to  land  by,  1213. 

remedies  for  injury  to  land,  1211. 

formal  discharge  by,  1239. 

death  of,  1264. 

not  affected  by  subsequent  record  of  instrument,  1083. 

possession  not  adverse  to  mortgagor,  1012. 
transfer  of  mortgaged  land,  right  to  make,  1194,  1214. 

to  mortgagee,  1215. 
transferee  of  land,  assumption  of  mortgage  by,  1216,  1219. 

as  principal  debtor,  1218. 

release  by  mortgagee,  1221. 

right  to  question  mortgage,  1221. 
transfer  of  part  of  land,  residue  primarily  liable,  1222. 

inverse  order  of  alienation,  1223. 
descent  of  mortgaged  land,  1215. 
transfer  of  mortgage,  express  assignment,  1225,  1229. 

legal  conveyance,  1226. 

by  assignment  of  debt,  1226. 

assignment  of  part  of  debt,  1227. 

without  debt,  1229. 

freedom  from  equities,  1230. 

securing  negotiable  note.  1231. 

record  and  notice,  1232,  1234. 
Real  Prop.— 97. 


1538  INDEX. 

[eefebences  are  to  pages.] 
MORTGAGES— Cont'd. 

priorities,  prior  unrecorded  instrument,  1174. 

mortgage  unrecorded,  1176. 

defeasance  unrecorded,  1178. 

future  advances,  1185,  1186. 

assignees  of  parts  of  debt,  1228. 

freedom  of  assignment  from  equities,  1230. 

unrecorded  assignment,  1232,  1234. 

as  against  meclianie's  lien,  1301. 
judgment  lien,  1314. 
dower  right,  424. 
for  purchase  money,  superior  to  judgment,  1314. 

dower,  424. 
payment,  contribution,  1224,  1246. 

exoneration,  1224,  1245. 

before  default,  1235. 

after  default,  1236. 

formal  discharge,  1238. 

who  may  make,  1241. 

by  personal  representative,  435,  1245. 

subrogation  of  pei'son  paying,  1246. 
tender,  before  default,  1235. 

after  default,  1236. 
tacking  of  mortgages,  1242. 

unsecured  claims,  1244. 
consolidation  of  mortgages,  1243. 
marshaling,  1249. 

agreement  for  collateral  advantage,   1192. 
redemption,  equitable  recognition  of  right,  1166,  1238. 

foreclosure  of  right,  1167. 

agreement  clogging  right,   1170. 

enforcement  of  right,   1239. 

bar  by  lapse  of  time,  1240. 

persons  entitled  to  redeem,  436,  1241. 

amount  necessary,  1242. 

tacking  unsecured  claims,  1244. 

exoneration  of  person  redeeming,  1224,  1245. 

contribution  towards,  1224,  1246. 

subrogation  of  person  redeeming,  1246. 

statutory  right  after  foreclosure,  1259,  1262. 
formal  release  or  discharge,  1239. 
release  of  part  of  land,  1225. 
merger  in  ownership,  1250. 


INDEX.  1539 

[references  are  to  pages.] 
MORTGAGES— Cont'd. 

foreclosure,  of  right  of  redemption,  1166,  1253. 
accrual  of  right,  1253. 
on  nonpayment  of  installment,  1253. 

taxes,  1254. 

insurance,  1254. 
bar  by  lapse  of  time,  1254,  1256. 
strict  foreclosure  in  equity,  1257. 
by  entry,  1258. 
by  writ  of  entry,  1259. 
by  equitable  proceeding  for  sale,  1260. 
parties  to  proceeding,  1262,  1264. 
by  assignee,  1263. 
by  personal  representative,  1264. 
effect  of  decree,  1261. 
exercise  of  power  of  sale,  1267. 
scire  facias,  1275. 

stipulation  for  attorney's  fees,  1275. 
statutory  right  of  redemption,  1259,  1262. 
powers  of  sale,  as  equitable  powers,  1269. 
as  powers  of  agency,  1269. 
revocation  of  power,  1268,  1270. 
death  of  mortgagor,  1268,  1269. 

mortgagee,  1270. 
assignment,  1270. 
intervening  transfers,   1270. 
mode  of  proceeding  under,  1271. 
purchase  by  mortgagee,  1272. 
conveyance  to  purchaser,  1272. 
in  deed  of  trust,  1273. 
personal  liability,  enforcement  in  foreclosure  suit,  1278. 
separate  suit,   1276. 

MORTMAIN  STATUTES, 

nature,  1157. 
MOTIVE, 

malicious,  in  use  of  land,  651,  667. 

MOVABLES, 

distinguished  from  land,  15. 

MUNICIPAL  CORPORATIONS, 

adverse  possession  against,  1005. 
see  "Highways." 


1540  INDEX. 

[references  are  to  pages.] 

MURDER, 

of  ancestor  by  heir,  1161. 
of  testator  by  devisee,  1161. 

N. 

NAKED  POWER, 

nature  of,  612,  613. 

NAMES, 

in  conveyance,  865. 

NATURAL  GAS, 
ownership,  518. 

NATURAL  RIGHTS, 

incident  to  ownership  of  land,  649. 
as  to  water  in  stream,  655,  688. 

surface  water,  662. 

underground  water,  666. 

air,  652,  687. 

support  of  land,  668,  690. 
suspension  of  rights,  672. 

see   "Easements." 

NAVIGABLE  WATERS, 

land  under,  ownership,  591,  593. 

access  to,  597. 

erections  and  reclamations  on  shore,  597. 

wharves  on  shore,  598. 

description  of  land  as  bounded  by,  890. 

see  "Navigation";   "Tide  Waters";   "Waters. 

NAVIGATION, 

public  rights  of,  592,  826,  827. 
right  of  landing  not  included,  828. 

hunting  not  included,  828. 

towage  not  included,  828. 
obstruction  of,  826,  828. 

NEGOTIABLE  NOTE, 

secured  by  mortgage,  1231. 


INDEX.  1541 

[BEFEBENCES   ABE  TO   PAGES.] 


NECESSITY, 


easements  implied  from,  713. 
ways  of,  713,  714,  721. 

NEGLIGENCE, 

as  ground  of  liability  for  escape  of  water,  666. 

fire,  572. 
of  landlord,  as  ground  of  action,  102,  105. 

tenant,  as  ground  of  action,  104. 

recording  officer,  1082. 

NEMO   EST  HAERES   VIVENTIS, 
application  of  maxim,  283. 

NEW  YORK, 

system  of  trusts,  263. 

powers,  644. 
rule  against  perpetuities,  365. 

NOISE, 

nuisance  of,  652. 
easement  of  diffusing,  687. 

NON  COMPOS   MENTIS, 
see  "Insane  Persons." 

NONUSER, 

of  easement,  effect,  735-737. 

NOTE, 

secured  by  mortgage,  transfer,  1227. 

NOTICE, 

to  terminate  tenancy,  131,  142,  147,  154. 
equitable  doctrine  of  notice,  1075,  1076. 
from  record  of  instrument,  1077,  1079,  1080. 

condition  of  land,   1086. 

inadequacy  of  consideration,  1086. 

possession,  1088. 

lis  pendens,   1098. 
putting  on  inquiry,  1085. 
as  substitute  for  recording,  1084-1096. 


1542  INDEX. 

[EEFERENCES   ABE  TO   PAGES.] 

NOTICE— Cont'd. 

of  agreement  as  to  use  of  land,  effect  on  purchaser,  749,  762. 

equities,  on  assignment  of  mortgage,  1230,  1232. 
purchasers  with  notice  from  purchasers   without  notice,  1095. 
purchasers  without  notice  from  purchasers  with  notice,  1095. 

NOXIOUS   TRADE, 

how  far  a  nuisance,  650,  652,  654. 

NUISANCE, 

interference  with  natural  right,  650. 
of  smoke,  652. 

dust,  652. 

disagreeable  odors,  652. 

noxious  trade,  650,  652,  654. 

pollution  of  air,  652,  653,  674. 
of  water,  658,  667. 

noise,  652,  687. 

appropriation  of  water,  656,  657,  661. 

flooding  land,  659,  663. 

projection  over  land,  515,  531. 

withdrawal  of  support,  668. 
prescriptive  right  to  maintain,  687,  1029. 
action  for  damages,  674. 
injunction,  674. 
abatement,  675.  ' 


o. 


OBLIGATION, 

secured  by  mortgage,  1183. 
bar  by  limitations,  1256. 

OBSTRUCTION, 

of  watercourse,  659,  688,  716. 
surface  water,   663. 
percolating  water,  666,  667. 
easement,  728,  729. 
see  "Nuisance." 

OCCUPANCY, 

special  and  general,  78. 


INDEX.  1543 


[references  are  to  pages.] 

OCCUPYING  CLAIMANTS'  ACTS, 

compensation  under,  554. 
lien  for  compensation,  1323. 

ODORS, 

nuisance  of,  652. 

OFFICE   FOUND, 

purpose  of  proceeding,  1052,  1158. 

OFFICES, 

as  property,  9. 

OILS, 

beneath  the  surface,  ownership,  518. 

OMISSION, 

of  child  from  will,  statutory  provision,  966. 

OPTION, 

to  declare  mortgage  debt  due,  1253. 

ORAL  AGREEMENT, 

see  "Statute  of  Frauds." 

ORAL  EVIDENCE, 

as  to  debt  secured  by  mortgage,  1185. 
that  conveyance  is  mortgage,  1179. 
of  exception   from   covenant,   908. 

amount  of  consideration,  877,  878. 
to  contradict  certificate  of  acknowledgment,  926. 

ORE, 

see  "Minerals." 

OUSTER, 

of  cotenant,  389. 

see  "Adverse  Possession";    "Eviction." 


1544  INDEX. 

[EEFEEENCES    ABE   TO   PAGES.] 

OWELTY, 

of  partition,  nature,  407. 
lien  for,  1287. 

OWNERSHIP, 

of  land,  4,  41. 

equitable,  196. 

concurrent,  368. 

of  earth  and  minerals,  516,  744. 

vegetable  products  of  the  earth,  521,  578. 

fixtures,  535. 

part  of  building,  554. 

manure,  555. 

proceeds  of  waste,  578. 

land  under  water,   590. 

Ice,  598. 

animals,  600. 

fish,   600,   745. 

P. 

PARAMOUNT  TITLE, 

eviction  under,  126,  135.  909. 

PARCENARY, 

see  "Coparcenary." 

PARENT  AND  CHILD, 

resulting  trusts  as  between,  232. 

PARKS, 

nature,  820. 

dedication  of  land  for,  971. 

PAROL  EVIDENCE, 

of  exception  from  covenant,  908. 

amount  of  consideration  of  conveyance,  877,  878. 
to  contradict  certificate  of  acknowledgment,  926. 
that  conveyance  is  mortgage,  1180. 
as  to  debt  secured  by  mortgage,  1185. 

PAROL  LEASE, 
validity,  85. 


INDEX.  1545 

[references  are  to  pages.] 
PAROL  TRANSFER, 

see  "Statute  of  Frauds." 

PARTICULAR  ESTATE, 

supporting  remainder,  278. 
destruction,  295,  297. 
forfeiture,  296. 

see  "Contingent  Remainders";  "Remainders." 

PARTIES, 

to  conveyance,  865. 

capacity,  1143. 
to  suit  concerning  trust  property,  221. 

to  foreclose  mortgage,  1262. 

see  "Grantor  and  Grantee";  "Personal  Capacity." 

PARTITION, 

voluntary  and  compulsory,  403,  405. 

by  judicial  proceeding,  405. 

by  parol,  403. 

sale  to  effect,  407. 

decree  for,  effect,  407. 

owelty  of,  407. 

lien  for,  1287. 
effect  on  dower,  441,  467. 

judgment,  1310. 
implied  covenants  on,  404. 

see  "Apportionment." 

PARTNERSHIP  LAND, 

nature  and  criterions,  386. 
equitable  conversion  of,  255. 
liable  for  debts,  387,  388. 
dower,  in,  442. 

PARTY  WALLS, 

nature  and  classes,  691. 
right  to  build  on  another's  land,  693. 
prescriptive  rights,  1032. 
implied  grant  of  rights,  712. 
agreements  as  to,  writing  necessary,  702. 
running  with  land,  758. 


1546  INDEX. 

[references  are  to  pages.] 
PARTY   WALLS— Cont'd. 

windows  and  flues  in,  728. 
alterations  and  repairs,  726. 
extinction  of  rights.  733. 

PASSIVE  TRUSTS, 
nature,  235. 

PASTURE, 

rights  of,  in  another's  land,  743. 

PATENT, 

for  public  land,  842. 

as  evidence  of  title,  842,  844. 

necessity,  to  divest  government  title,  843^ 

attack  for  fraud  or  mistake,  844. 

PAYMENT, 

of  mortgage,  before  default,  1235. 

after  default,  1236. 

contribution,  1224,  1246. 

exoneration,  1224,  1245. 

subrogation,  1246. 

who  may  make,  1241. 

by  personal  representative,  435,  1245. 

widow's  rights  as  to,  435. 

presumption  from  lapse  of  time,  1257. 

rent,  medium  of,  773. 
place  and  time  of,  358. 

PERCOLATING  WATERS, 

natural  rights,  666. 
easements,  689. 
prescriptive  rights,  1030. 

PENDENTE  LITE, 

see  "Lis  Pendens." 

PERMISSIVE  WASTE, 

nature  of,  100,  570. 
tenants  liable,  571. 
by  mortgagee,  1214. 


INDEX.  1S47 

[REFEEENCES   ABE   TO   PAGES.] 

PERPETUITY, 

what  constitutes,  347. 
trust  involving,  250,  1139. 

see  "Rule  against  Perpetuities." 

PERSONAL  CAPACITY, 

married  women,  414,  416,  1144,  1145. 

infants,  936.  1147,  1152. 

persons  mentally  defective,  1152,  1155. 

corporations,  1156^  1157. 

aliens,  1158. 

criminals,  1161. 

PERSONAL  DISABILITIES, 

exceptions  in  statutes  of  limitation,  1003,  1023. 
see  "Personal  Capacity." 

PERSONAL  INJURIES, 

from  defects  in  leased  premises,  103. 

PERSONAL  LIABILITY, 

of  grantee  of  mortgaged  land,  1216,  1219. 

PERSONAL   PROPERTY, 

nature,  3,  14. 
not  subject  of  entail,  65. 
attached  to  land,  535. 
rent  as,  778. 

PEWS, 

as  incorporeal  things,  697,  730. 

PLANTS, 

legal  character,  521. 

see  "Crops";   "Trees";   "Vegetable  Products." 

PLAT, 

description  by   reference  to,   885. 
dedication  by  filing,  975. 


1548  INDEX. 

[EEFEKENCES   ABE   TO   PAGES. J 

POLLUTION, 

of  air,  652,  653. 

of  water,  658,  665,  667. 

prescriptive  rights,  1029. 

PONDS, 

land  under,  ownership,  595. 
boundary  on,  891,  1035. 

POSSESSIO  FRATRIS, 

meaning  of  phrase,  983. 

POSSESSION, 

as  notice,  1088. 
of  cotenant,  389. 
lessee's  right  to,  92. 
of  mortgaged  land,  1199. 

see  "Adverse  Possession";   "Seisin." 

POSSIBILITY, 

not  subject  of  transfer,  306,  341. 

POSSIBILITY  OF  REVERTER, 
nature,  195,  272. 

on  dissolution  of  corporation,  273. 
after  determinable  fee,  273. 

conditional  fee,  54. 
assignment,  195. 
applicability  of  rule  against  perpetuities,  353. 

POSTHUMOUS  CHILD, 
inheritance  by,  991. 
may  take  as  remainderman,  293,  303. 

POSTNUPTIAL  SETTLEMENT, 
effect  on  dower,  463. 

POWERS, 

at  common  law,  603. 
general  and  special,  610,  645. 
in  trust,  611,  620,  645. 


INDEX.  1 549 

[references  are  to  pages.] 
POWERS— Cont'd. 

of  appointment,  607,  609,  610. 

revocation,  608,  1116. 
beneficial,  645. 
of  attorney,  nature,  606,  937,  1269. 

revocability,  615. 
equitable,   609. 
of  agency,  606,  1269. 
simply  collateral,  641. 
appurtenant  and  appendant,  642. 
collateral  and  in  gross,  643.     • 
coexisting  with  estate,  643. 
in  executors,  to  sell  land,  605,  612,  615. 
statutory  powers,  607. 
taking  effect  as  executory  limitations,  607. 
naked  and  bare  powers,  612. 
coupled  with  an  interest,  612,  614,  1268. 
exclusive  and  nonexclusive,  617,  637. 
discretionary  and  imperative,  611,  620. 
of  sale  and  exchange,  618. 

in  mortgage,  1267. 
mode  of  creation,  615. 
donor  and  donee,  610. 
execution,  conditions  of,  633. 

mode  of,  626,  635. 

excessive,  634. 

time  of,  631. 

conveyance  or  devise  as,  627,  629. 

aider  in  equity,  611,  620,  635. 

failure  to  execute,  620. 

gifts  in  default  of,  639. 

fraud  in,  638. 
estate  appointable,  617. 
appointees  under,  616. 
illusory  appointment,  637. 
fraudulent  appointment,  638. 
delegation,  619. 
transfer,  619,  621,  641. 
joint  donees,  joinder  in  execution,  622. 

death  of  joint  donee,  624. 
of  executor,  execution  by  administrator  c.  t.  a.,  621. 
extinction,  640. 

suspension  by  conveyance,  642. 
death  of  donor,  effect,  614,  1268. 


1550  INDEX. 

[EEFEBENCES   ABE   TO   PAGES.] 

POWERS— Cont'd. 

appointed  property  as  assets,  643. 

within  rule  against  perpetuities,  646. 

statutory  systems,  644. 

of  alienation,  effect  on  executory  interest,  330. 

see  "Powers  of  Attorney";  "Power  of  Sale  in  Mortgage. 

POWERS  OF  ATTORNEY, 

do  not  create  proprietary  rights,  606. 

necessity  of  record,  1078. 

revocability,  615,  1269. 

execution  of  conveyance  under,  937. 

to  represent  married  woman,  execution,  939,  1145. 

as  creating  lien,  1282. 

POWER  OF  SALE  IN  MORTGAGE, 

as  equitable  power,  1269. 

power  of  agency,  1269. 
revocation,  1268,  1270. 
death  of  mortgagor,  1268. 

mortgagee,  1270. 
assignment,  1270. 
intervening  transfers,  1270. 
mode  of  proceeding  under,  1271. 
purchase  by  mortgagee,  1272. 
conveyance  to  purchaser,   1273. 
in  deed  of  trust,  1273. 

PRACTICAL  LOCATION, 

of  boundary,  889. 

PRECATORY  WORDS, 

creating  trust,  222. 

PRE-EMPTION, 

right  of,  in  public  land,  832. 

PREFERENCES, 

in  favor  of  creditors,  validity,  1110,  1117. 

PREMISES, 

of  conveyance,  864. 


INDEX.  1551 

[references  are  to  pages.] 


PRESCRIPTION, 


for  incorporeal  things,  1019. 
presumption  of  lost  grant,  1020. 
tacking  of  successive  users,  1022. 
personal  disabilities,  1022. 
continuity  of  user,  1023. 
exclusiveness  of  user,  1025. 
hostile  character,  1025. 
for  easements,  716,  722. 

right  of  way,  1028. 

appropriation  of  water,  1028,  1029. 

flpwage  of  land,  1028. 

profit  a  prendre,  1029. 

pollution  of  atmosphere,  1029. 

percolation  of  water,  1030. 

flow  of  surface  water,  1030,  1031. 

light  and  air,  1031. 

support,  1031. 

party  wall,  1032. 

highway,   1032. 

PRESUMPTION, 

of  grant,  as  basis  of  prescription,  1020. 
conveyance  of  land  under  water,  890. 
mortgage  character  of  instrument,  1182. 

PRICE, 

see  "Purchase  Price." 
PRINCIPAL  AND  AGENT, 

see  "Agent";  "Powers  of  Attorney." 
PRINCIPAL  AND  SURETY. 

subrogation  of  surety,  1247. 

mortgage  to  indemnify  surety,  1188. 

relation  between  mortgagor  and  grantee,  1218. 

PRIORITIES, 

as  determined  by  time,  1074. 

as  determined  by  notice  and  recording,  1074-1100. 
on  assignment  of  mortgage,  1230,  1232. 
of  judgment  lien,  1311. 
mechanic's  lien,  1301. 

see   "Bona   Fide    Purchaser";    "Mortgages";    "Notice' 
"Purchasers";  "Record." 


1552  INDEX. 

[eeferences  are  to  pages.] 
PRISONERS, 

adverse  possession  against,  1003. 

PRIVACY, 

invasion  by  overlooking  window,  651. 

PRIVITY, 

of  estate,  between  landlord  and  tenant,  108,  115. 

necessary  to  running  of  covenant,  752,  754. 

supports  debt  for  rent,  795. 
of  contract,  between  landlord  and  tenant,  108. 

PROBATE  COURT, 

sale  of  land  to  pay  decedent's  debts,  1058. 

PROCESSIONERS, 

to  determine  disputed  boundary,  582. 

PROFITS  A  PRENDRE, 

nature  of  right,  740. 

in  gross  and  appurtenant,  742. 

dominant  and  servient  tenements,  742. 

grant  of,  743,  746. 

creation  by  reservation  or  exception,  704,  874. 

prescription  for,  1029. 

not  created  by  custom,  824. 

minerals,  520,  745. 

pasture,  743. 

apportionment,  748. 

release  of,  748. 

extinguishment,  747. 

merger  in  ownership,  748. 

dower  in,  428. 

see  "Prescription";   "Minerals." 

PROJECTION, 

over  another's  land,  515,  531. 

PROPERTY, 

real  and  personal,  1-3,  14. 


INDEX.  1553 

[BEFEBENCES    ABE   TO   PAGES.] 

PROSPECT, 

no  natural  right  to,  651. 

PUBLIC  GRANT, 

forfeiture,  180. 

see  "Public  Lands." 

PUBLIC  LANDS, 

of  United  States,  832. 

homestead  law,  834. 

pre-emption  law,  833. 

town  sites,  836. 

railroad  grants,  834.  " 

grant  to  state,  835. 

swamp-land  grants,  836. 

grant  of  mineral  rights,  836. 

bed  of  stream  in,  ownership,  595. 

grant  by  state,  838. 

Spanish  and  Mexican  grants,  841. 

patents,  purpose  and  effect,  842. 

PUBLIC  RIGHTS, 

in  private  lands,  806. 

to  take  ice,  599. 

of  navigation,  592,  826. 

fishing,  601,  825. 

highway,  806. 

park,  820. 

commons,  821. 
customary  rights,  823. 
prescription  for,  1032. 

see   "Dedication";    "Highways";    "Navigation";    "Navigable 
Waters." 

PUBLIC  USE,  APPROPRIATION  FOR, 
see  "Eminent  Domain." 

PURCHASE, 

words  of,  distinguished  from  limitation,  38. 

see  "Contract  of  Sale";  "Purchase  Money";  "Sale." 
Real  Prop.— 98. 


1554  INDEX. 

[references  are  to  pages.] 
PURCHASE  MONEY,  ■ 

payment  by  third  person,  resulting  trust,  231. 
application  by  trustee,  242. 
mortgage  for,  priority  over  dower,  424. 
implied  lien  of  vendor,  1287. 

superior  to  judgment,  1311,  1312. 

see  "Consideration";  "Vendor's  Lien." 

PURCHASERS. 

affpcted  by  agreements  as  to  use  of  land,  752,  762. 

under  common  building  plan,  762,  768. 

for  value  without  notice,  1074-1100. 

Tvith  notice,  from  purchasers  without,  1095. 

without  notice,  from  purchasers  with,  1095. 

recording  laws,  effect,  1080,  1093. 

for  value,  1093. 

■creditors  as  bona  fide  purchasers,  1313,  1317,  1319. 

see  "Bona  Fide  Purchasers";  "Contract  of  Sale";  "Notice' 
"Purchase  Money";  "Record";  "Sale";  "Vendor's  Lien." 


O. 


QUALIFIED  FEES, 

meaning  of  term,  192. 

QUANTITY, 

of  land  conveyed,  as  part  of  description,  889. 

QUARANTINE, 

widow's,  nature,  471. 
see  "Dower." 

QUARRIES, 

ownership,    516. 
waste  in  opening,  561. 
dower  in,  426. 

QUASI   BASEMENTS, 

nature,  702. 

implied  grant  of  easements  corresponding  to,  705. 


INDEX.  1555 


[references  are  to  pages.] 

QUIA  EMPTORES,  STATUTE  OF, 

nature,  27.  28. 

effect  on  determinable  fee,  193. 
rent  service,  776,  777. 

QUIET  ENJOYMENT,  COVENANT  OF, 

in  lease,  95. 

in  conveyance,  908. 

when  implied,  95,  901. 

breach  by  eviction,  97,  127,  909. 

clamages  for  breach,  98,  912. 

QUIT, 

notice  to  tenant  to,  131,  142,  147,  154. 

QUITCLAIM  DEED, 

nature,  861. 

grantee  as  bona  fide  purchaser,  1091. 

R. 

RAILROAD, 

in  highway,  additional  servitude,  811,  812,  815. 

track,  duty  to  fence,  589. 

rolling  stock  as  fixtures,  540. 

public  grant  to  aid  in  construction,  834. 

REAL, 

and  personal,  origin  of  terms,  3. 
actions,  3. 
property,  1,  14. 
things,  4,  8. 

rent  as  real  property,  778. 
see  "Personal  Property." 

RECEIPT, 

of  purchase  money,  acknowledgment,  877. 

RECEIVER, 

as  assignee  of  lease,  110. 
of  mortgaged  land,  1201. 


1556  INDEX. 

[beferences  are  to  pages.] 

RECITALS, 

in  conveyance,  nature,  864. 
estoppel  by,  1041. 
references  as  notice,  1090. 

RECONVERSION, 
in  equity,  258. 

RECORD, 

of  conveyance,  1077-1099. 

mortgage,  1176,  1177. 

assignment  of  mortgage,  1232,  1234. 

defeasance  of  mortgage,  1178. 

equitable  title,  1078. 

power  of  attorney,  1078. 

lis  pendens,  1099. 

instrument  not  entitled  to  record,  1081. 

not  duly  executed,  1081. 

not  duly  acknowledged,  1081. 
suflBciency  of,  1081. 
index  of  records,  1082. 
negligence  of  recording  oflacer,   1082. 
is  notice  to  subsequent  purchaser,  1077,  1079,  1080,  1083. 
is  not  notice  to  previous  mortgagee,  1083. 
necessity  as  against  mortgagee,  1174. 

assignee  of  mortgage,  1234. 

grantee  in  quitclaim,  1091. 

grantee  in  restricted  conveyance,  1091. 

purchaser  from  heir,  1093. 

prior  mortgagee,  1083. 

person  not  paying  consideration,   1093. 

creditors,  1313,  1317,  1319. 
notice  instead  of,  1084-1096. 

from  condition  of  premises,  1087. 

inadequacy  of  consideration,  1086. 
possession,   1088. 
recitals,  1090. 

to  agent,  1087. 
as  evidence  of  delivery,  930. 

see  "Bona   Fide   Purchasers";    "Priorities";    "Purchasers' 
"Registration  of  Title." 

RECOVERIES, 

as  mode  of  conveyance,  66,  849. 


INDEX.  1557 


[BEFEBENCES    ABE   TO   PAGES.] 

RECTANGULAR   SURVEYS, 

description  by  reference  to,  884. 
meander  lines  under,  884. 

REDELIVERY, 

of  conveyance,  effect,  934. 

REDEMPTION, 

from  mortgage,  equitable  right,  1166,  1170,  1238. 

clogging  of  right,  1170. 

enforcement  of  right,  1239. 

bar  by  lapse  of  time,  1240. 

persons  entitled,  1241. 

by  widow,  436. 

amount  necessary,  1242. 

exoneration,  1224,  1245. 

contribution  towards,   1224,  1246. 

subrogation,  1246. 
from  foreclosure,  statutory  right,  1259. 

RE-ENTRY, 

conditions  of,  157. 
see  "Conditions." 

REFORMATION, 

of  conveyance,  for  mistake,  878. 
omission  of  "heirs,"  45. 

REGISTRATION  OP  TITLE, 

purpose  of  the  system,  1101. 

method  of  registration,  1102. 

transfers  after  registration,  1104. 

equitable  interests,  1105. 

liens,  1105. 

mortgages,  1106. 

transfer  of  decedent's  land,  1106. 

RELEASE, 

what  constitutes,  851. 
classes  of,  851. 
of  easement,  735. 

profit  a  prendre,  748. 


1558  INDEX. 

[references    ABE   TO   PAGES.] 

RELEASE— Cont'd. 

rent,  788. 

mortgage,  1238. 

part  of  mortgaged  land,  1224. 

homestead  rights  of  wife,  504. 

dower,  448,  468,  469. 

right  of  action  on  covenant,  916. 

mechanic's  lien,  1304. 

reversion  or  remainder,  851. 
word  "heirs"  sometimes  necessary,  851. 
lease  and,  conveyance  by,  207,  859,  861. 

REMAINDERS, 

nature,  274. 

in  equitable  estates,  277,  293. 
vested  and  contingent,  282. 
particular  estate,  necessity,  278. 

determinable  fee,  280. 

fee  tail,  278,  279. 

term  for  years,  294. 

destruction,  295,  297,  304. 

statutory  provisions,   343. 
alternative,  300. 
to  a  class,  291. 
cross  remainders,  300. 
to  issue  of  unborn  child,  302. 
devises  by  way  of  remainder,  326. 

executory  devise  or  remainder  according  to  event,  327. 
acceleration,  304. 
transfer,  305. 
descent  and  devise,  305,  307. 

see  "Contingent  Remainders";  "Future  Estates  and  Inter- 
ests"; "Executory  Devise";  "Executory  Interest";  "Ex- 
ecutory Limitations." 

REMOTENESS, 

see  "Rule  against  Perpetuities." 


RENT, 


nature  of,  772. 
service,  776,  777. 
charge,  777. 
seek,  776. 


INDEX.  155«» 

[kkkkkk.ncks  auk  to  pages.] 


RENT— Cont'd. 


reserved  on  tenancy  at  will,  778. 
from  incorporeal  things,  774. 

personal  chattels,  774. 

land  and  chattels,  774. 

minerals,  520. 
must  be  certain  in  amount,  774. 
medium  of  payment,  773. 
share  in  crops  as  rent,  533. 
place  and  time  of  payment,  779. 
demand  for  payment,  175. 
mode  of  reservation,  105,  779. 
as  real  or  personal  property,  778. 
apportionment  as  to  amount.  781,  784. 

as  to  time,  783. 

on  partial  eviction,  130,  786,  793. 
re-entry  by  landlord,  786. 
partial  transfer  of  land,  787. 
partial  merger,  787. 

of  covenant  for,  781,  787. 
passes  on  transfer  of  reversion,  112. 
covenants  to  pay.  780. 

run  with  the  land,  117,  781. 

apportionment,  781,  787. 

actions  on,  797. 
extinguishment,  132,  7S8. 

termination  of  lease,  790. 

condemnation  of  land,  791. 

release,  788. 

merger.  132,  788. 

eviction,  792. 

destruction  of  building,  135,  791. 
tenant  not  taking  possession,  effect,  9. 
landlord  withholding  possession,  effect,  788. 
destruction  of  building,  effect,  135,  791. 
remedies,  debt,  794,  799. 

covenant,  797. 

action  for  use  and  occupation,  798. 

attachment,  804. 

re-entry,  187,  799. 

previous  demand,  175. 
relief  against,  187. 

equitable,  804. 
lien  for.  804,  1322. 


1560  INDEX. 

[references  a'ke  to  pages.] 

RENT— Cont'd. 

forfeiture  of  premises,  continued  liability,  134. 

tenant  holding  over,  liability,  151. 

dower  in,  428. 

of  mortgaged  land,  rights  of  mortgagee,  1204. 

mortgage  of,  1171. 

see  "Distress";  "Estate  for  Years";  "Landlord  and  Tenant"; 

"Lease";    "Rents   and   Profits";    "Tenancy   from   Year  to 

Year";   "Tenancy  at  Will." 

RENTS  AND  PROFITS, 

of  dower  interest,  accounting,  481. 

mortgaged  land,  who  entitled,  1201,  1202. 
recovery  by  cotenant,  392. 
grant  of.  carries  the  land,  883. 

REPAIRS, 

by  life  tenant,  74. 

tenant  for  years,  100,  570. 

landlord,  102,  105. 

cotenant,  397. 

contribution,  398. 

mortgagee,  1206. 
covenant  to  make,  obliging  to  rebuild,  101. 

running  with  land,  757. 
of  appliance  for  easement,  725. 

party  wall,  727. 

partition  fence,  694. 
failure  to  make,  permissive  waste,  100,  570. 

see  "Contribution";    "Improvements." 

REPRESENTATION, 

of  ancestor  by  issue,  for  purpose  of  descent,  988.       , 

REPRESENTATIONS, 

for  purpose  of  inheritance,  effect,  988. 
as  to  boundary,  586. 

title,  estoppel,  1045. 

REPURCHASE, 

stipulation  for  right,   distinguished  from  mortgage,   1181,  1182. 

REPUBLICATION, 

of  will,  969. 


INDEX.  1561 

[references  are  to  pages.] 
REPUGNANT  CONDITIONS, 
nature  and  effect,   171. 

RESERVATION, 

distinguished  from  exception,  872. 

of  easement  or  right  of  profit,  7U3,  874,  875. 

way  of  necessity,  714. 

life  estate,  321. 

rent,  105,  779. 
must  be  in  grantor's  favor,  874. 
use  of  word  "heirs,"  876. 
implied,  on  severance  of  tenements,  711. 

see  "Exception." 

RESIDENCE, 

exemption  from  execution,  see  "Homestead." 

RESIDUARY  CLAUSE, 

in  will,  purpose  and  effect,  943,  955. 

RESTRAINTS  ON  ALIENATION, 

imposed  in  creation  of  fee  simple,  1135. 

fee  tail,  1139. 

life  estate,  1140. 

estate  for  years,  1142. 
spendthrift  'trusts,  1138,  1141,  1142. 
of  sole  and  separate  estate,  1138,  1141. 
land  in  adverse  possession,  1118. 
rule  against  perpetuities,  344. 
by  bankrupt  act,  1117. 
protection  against  fraud  on  marriage,  444,  445,  495. 

creditors,  1109. 

subsequent  purchaser,  1114. 

see  "Alienation";  "Charitable  Trust";  "Fraud";  "Home- 
stead"; "Perpetuity";  "Rule  against  Perpetuities." 

RESTRAINT  OF  MARRIAGE, 

conditions  in,  169. 

RESTRICTIONS  ON  USE  OF  LAND, 

repugnant  conditions,  171. 
covenants  rimning  with  the  land,  749. 
enforceable  against  purchaser  with  notice,  762. 
see  "Rights  of  User";  "Waste." 


1562  INDEX. 

[references  are  to  pages.] 

RESULTING, 

use,  202,  208. 
trust,  207. 

effect  of  remoteness,  355. 
interest,  under  trust  for  conversion,  261. 

REVERSION, 

nature  and  mode  of  creation,  84,  269,  271. 
after  estate  for  life,  271. 

estate  tail,  271. 

estate  for  years,  84,  93,  270. 

tenancy  at  will,  140. 
after  sublease,  114. 

surrender  to  original  lessor,  132. 
transfer.  111. 

carries  rent,  111,  780,  781. 

attornment  unnecessary.  111. 

covenants  run  with  land,  42,  120. 
injuries  to,  right  of  action,  93,  674. 
merger  of  lesser  estate  in,  76,  133. 

see  "Landlord  and  Tenant";  "Rent." 

REVERTER, 

on  dissolution  of  corporation,  273. 
by  way  of  escheat,  272. 
after  determinable  fee,  273. 

conditional  fee,  54. 
application  of  rule  against  perpetuities,  353. 

REVIVAL. 

of  revoked  will,  968. 

REVOCATION, 

of  license,  680,  682. 

power,  by  voluntary  act,  614. 

by  death  of  donor,  614,  1268. 
power  of  attorney,  by  voluntary  act,  614,  1270. 

by  death  of  donor,  614,  1269. 
power  of  sale  in  mortgage,  1268,  1270. 
will,  by  cancellation  or  destruction,  956. 

dependent  relative,  959. 

by  subsequent  will,  960. 

under  mistake,  961. 


INDEX.  1  S()?> 

[references    ABE   TO   PAGES.] 

REVOCATION— Cont'd. 

by  marriage  and  birth  of  issue,  962. 
by  conveyance  of  land  devised,  964. 

revival  of  revoked  will,  967. 
trust,  no  power  not  expressly  reserved,  246. 
powers  of,  608. 

RIGHT  TO  CONVEY, 

covenant  for,  903. 

see  "Restraints  on  Alienation." 

RIGHTS, 

in  rem  and  in  personam,  1,  2,  219,  749. 

proprietary,  1,  219. 

of  ownership,  1,  219. 

above  the  surface,  515. 

below  the  surface,  515. 

to  use  or  take  profits  from  another's  land,  5,  15,  649. 

to  dispose  of  another's  land,  4,  603. 

RIGHTS   OF  ALIENATION, 

see  "Alienation";  "Restraints  on  Alienation." 

RIGHTS  OF  ENTRY, 

for  breach  of  condition,  180,  182. 
sufficiency,  for  purpose  of  dower,  422. 

curtesy,  487. 
applicability  of  rule  against  perpetuities,  354. 

RIGHTS  OF  USER, 

incident  to  ownership,  fee-simple  estate,  52,  559. 

fee  tail,  559. 

life  estate,  73. 

estate  for  years,  100. 
of  another's  land,  649. 

see  "Easements";  "Natural  Rights";  "Waste";  "Water." 

RIGHTS  OF  WAY, 
see  "Way." 

RIPARIAN  LANDS, 

uses  incidental  to  navigation,  828. 
erections  and  reclamations  on,  597. 

see  "Littoral  Owners";    "Riparian  Owners";   "Water." 


1564  INDEX. 

[befebences  are  to  pages.] 
RIPARIAN  OWNERS, 

rights  in  bed  of  stream,  591,  593,  595. 

lake  or  pond,  595. 
right  to  appropriate  water,  656. 

pollute  water,  657. 

obstruct  flow,  659. 

fish,  600. 

access  to  water,  597. 

reclaim  and  utilize  banks,  597. 
prior  appropriation  of  water  by,  661. 
rights  by  accretion,  1034,  1037. 
loss  by  avulsion,  1035. 

see  "Accretion";  "Boundaries";  "Description";  "Fish" 
"Littoral  Rights";  "Navigation";  "Rivers";  "Shore" 
"Streams";  "Tidal  Waters";  "Water." 

RIVERS, 

ownership  of  bed  in  tidal.  591. 

navigable,  593. 

non-navigable,  595. 
public  rights  of  navigation,  826,  827.  , 

anchorage,  826. 
change  in  course,  effect,  1035. 
islands  in,  ownership,  1038. 
description  by  boundaries  on,  890,  1035. 

see  "Banks";  "Boundaries";  "Fish";  "Littoral  Rights" 
"Navigation";    "Riparian  Owners";    "Streams";    "Water. 

ROADS, 

see  "Highways." 

ROLLING  STOCK, 

of  railroad,  as  fixture,  540. 

ROYALTIES, 

on  minerals  extracted,  nature,  520,  773. 

RULE  AGAINST  PERPETUITIES, 

nature,  344. 

purpose,  345. 

capability  of  alienation  not  the  test,  346. 

directed  against  remoteness  of  vesting,  344,  347. 

not  applicable  to  vested  interests,  352. 


INDEX.  1565 


[references  are  to  pages.] 
RULE  AGAINST  PERPETUITIES— Cont'd. 

period  allowed,  349. 

time  of  gestation,  350. 

computed  from  testator's  death,  352. 
application  independent  of  event,  352. 
interests  subject  to  rule,  353. 
applicability  to  conditions,  353. 

equitable  interests,  354. 

possibility  of  reverter,  353. 

contingent  remainders,  356. 

limitations  after  estate  tail,  356. 

charities,  361. 

powers,  646. 

accumulations,  363. 
effect  of  remoteness,  358. 
separable  limitations,  359. 
limitations  to  a  class,  348,  360. 

to  grandchildren,  348. 

on  failure  of  issue,  357,  358. 
statutory  modification,  365. 
provision  for  accumulations,  363. 

RULE  IN  SHELLEY'S  CASE, 

nature,  308. 

not  rule  of  construction,  313,  316. 
estates  subject  to,  311. 
statutory  abolition,  316. 


s. 


SALE, 


of  growing  crops,  531. 

trees,  528,  531. 

minerals,  519. 
on  condition,  of  chattels  subsequently  annexed,  542. 
power  of,  in  mortgage,  1267. 
of  land  of  insane  person,  1060. 

infant,  1060. 

decedent,  1057. 
under  mortgage,  proceeding  for  decree,  1249,  1260. 

power  in  mortgage,  1271. 

execution,  1053. 
priorities,  1097. 

deed  of  trust,  1273. 


1566  INDEX. 

[references  are  to  tages.] 
SALE— Cont'd. 

for  partition,  1060. 

unpaid  taxes,  1063. 
lien  for  price,  1287. 

see  "Contract  of  Sale";    "Purchase  Money";    "Purchaser' 
"Vendor's  Lien." 

SATISFACTION, 

of  mortgage,  1235,  1236,  1238. 

SCHOOL, 

lands,  grant  by  government,  836. 
dedication  of  land  for,  972. 

SCIRE   FACIAS, 

foreclosure  of  mortgage  by,  1275. 

SCROLL, 

sufficiency  as  seal,  921. 


SEA, 


governmental  control,  591. 
shore,  ownership,  591. 

public  rights  of  fishing,  592,  825. 
navigation,  592,  826. 

rights  of  private  owner,  592,  593. 

erections  and  reclamations,  597. 
riparian  rights  of  access,  597. 
conveyance  of  land  as  bounding  on,  892. 

see  "Seaweed";   "Tide  Waters." 

SEAL, 

necessity  on  ordinary  conveyance,  920. 
necessary  on  grant  of  incorporeal  thing,  849. 

grant  of  easement,  700. 

lease  of  incorporeal  thing,  850. 

release,  852. 
sufficiency,  921. 

SEAWEED, 

on  shore,  right  to,  593. 


INDEX.  1567 

[references  are  to  pages.] 
SECTION, 

under  government  survey,  884. 

SEISIN, 

at  common  law,  31 

under  statute  of  uses,  32,  207. 

necessity  for  dower,  420. 

curtesy,  487. 
transitory,  423. 

of  wife,  effect  of  curtesy  initiate,  500. 
as  root  of  descent,  983. 
covenant  for,  901. 
livery  of,  34,  847. 
disseisin,   33. 

SEPARATE  ESTATE, 

of  married  woman,  in  equity.  413,  1138,  1141. 
under  statutes,   415. 

SERVIENT  ESTATE, 

in  connection  with  easements,  685. 

SERVITUDES, 

see  "Easements";  "Natural  Rights";  "Profits  a  Prendre." 

SETTLEMENT, 
strict,   303. 

SEVERAL, 

right  of  profit,  742. 

SEVERALTY, 

ownership  in,  370. 

SEVERANCE, 

of  joint  tenancy,  373. 

tenancy  in  common,  378. 
fixtures,  544. 

constructive,  545. 
crops  and  trees,  527,  528. 
tenements,  implied  grant  of  easement.  705. 

reservation  of  easement,  711. 


1568  INDEX. 

[bEFEEENCES   ABE  TO   PAGES.] 
SHELLEY'S  CASE, 

see  "Rule  in  Shelley's  Case." 

SHERIFF, 

sale  under  execution,  1054. 

transfer  to  purchaser,  1056. 

SHIFTING  USES, 
nature,  319. 

SHORE, 

ownership,  591. 

grant  by  state,  592. 

rights  of  private  owner,  592,  593,  597. 

public  rights  of  navigation,  592,  826. 

fishing,  592,  825. 
erections  and  reclamations,  597. 
as  boundary  of  land  conveyed,  892. 
seaweed  on,  593. 

see      "Littoral      Rights";       "Riparian      Rights";       "Sea"; 
"Streams";   "Tide  Waters";    "Water." 

SIGNING, 

conveyance,  918. 
will,  944. 

SMOKE, 

pollution  of  air  by,  nuisance,  652. 

SOCAGE, 

tenure,  21. 

SOIL, 

as  part  of  land,  516. 

SOLE  AND  SEPARATE  ESTATE, 

of  married  woman,  220,  413,  1138,  1141. 

SOVEREIGN  RIGHTS, 

in  minerals,  518. 
eminent  domain,  1068. 
escheat,  1049. 


INDEX.  1569 


[references  are  to  pages.] 
SPANISH  GRANTS, 

as  basis  of  private  ownership,  832. 

SPECIAL  LIMITATION,  ESTATE  ON, 

nature,  188. 

distinguished  from  estate  on  condition,  160,  189,  190. 

estate  in  fee  simple,  190,  192. 

tail,  190. 

for  life,  71,  191. 

for  years,  131,  191. 
dower  in,  430. 
rights  of  transferees,  195. 
limitation  not  within  rule  against  perpetuities,  353. 

see  "Determinable  Fees." 

SPECIAL  OCCUPANCY, 

estate  pur  autre  vie,  78. 

SPENCER'S  CASE, 
rules  in,  115. 

SPENDTHRIFT  TRUSTS, 

nature  and  validity,  1138,  1141. 

SPRINGING  USES, 
nature,  318. 

SQUARES,  / 

public,  820. 

STATE, 

ownership  of  land  under  tide  waters,  591. 

shore,  591. 

bed  of  river,  591,  593. 
grant  to  individual,  838. 

of  shore,  592. 
grants  to  state  by  United  States,  835. 
as  trustee,  226. 

lord  paramount,  30. 
adverse  possession  against,  1005. 
acquisition  of  rights  by,  escheat,  1049,  1050. 

condemnation,  1068. 

forfeiture,    1050,   1066. 
Real  Prop.— 99. 


1570  INDEX. 

[references  are  to  pages.] 

STATUTE  OP  ENROLLMENTS, 
purpose  and  effect,  859. 

STATUTE  OF  FRAUDS, 

application  to  express  trust,  223. 

resulting  trust,  227,  230. 

constructive  trust,  235. 

conveyance  of  land,  863. 

livery  of  seisin,  848. 

lease,  85,  850. 

assignment  of  leasehold,  107,  857. 

surrender,  853. 

exchange,  858. 

revocation  of  will,  956. 

license,  681. 

creation  of  easement,  701. 

oral  agreement  for  easement,  part  performance,  682. 

partition,  403. 

boundary  agreement,  583. 
application  to  party-wall  agreement,  702. 

mortgage,  1175. 
of  fixture,  545. 

deposit  of  title  deeds  as  security,  1285. 

sale  of  standing  trees,  530. 

sale  of  growing  crops,  531. 

sale  of  fixture.  545. 

release  of  dower,  450. 
abolition  of  general  occupancy,  78. 

STATUTE  OF  LIMITATIONS, 

action  to  recover  land,  997. 

foreclose  mortgage,  1254,  1256. 

redeem  from  mortgage,  1240. 
personal  disabilities,  1003. 
short  limitations,  999. 

see  "Adverse  Possession";  "Prescription." 

STATUTE  OF  USES, 

purpose  and  effect,  203,  205. 
execution  of  use,  206. 
application  to  wills,  208. 
resulting  uses,  208. 


INDEX.  1571 


[references    ABE   TO   PAGES.] 

STATUTE  OF  USES— Cont'd. 

uses  not  within  tlie  statute,  210. 
conveyances  under,  206,  207,  858. 
see  "Uses." 

STATUTORY  LIENS, 

nature,  1296. 
mechanics'  liens,  1297. 
of  judgment,  1305. 

attachment,  1315. 

execution,  1318. 

taxes  and  assessments,  1319. 

decedent's  debts,  1321. 
on  crops,  for  rent,  1322. 

supplies,  1322. 
for  improvements,  1323. 

widow's  allowance,  1323. 

STIRPES, 

descent  per  stirpes,  984,  988,  989. 

STOCK, 

in  corporation,  personal  property,  13. 
see  "Live  Stock." 

STONE, 

see  "Minerals";  "Quarries." 

STREAMS, 

ownership  of  bed,  tidal,  591. 

navigable,  593. 

non-navigable,  595. 
public  rights  of  navigation,  826,  827. 

anchorage,  826. 
change  in  course,  effect,  1035. 
floatable  streams,  827. 
islands  in,  ownership,  1038. 
description  of  land  by  reference  to,  890,  1035. 
riparian  rights,  appropriation  of  water,   656. 

obstruction  of  flow,  659. 

pollution,   658. 


1572  INDEX. 

[references  are  to  pages.] 
STREAMS— Cont'd. 

prior  appropriation,  661. 

see  "Accretion";  "Fish";  "Littoral  Rights";  "Naviga- 
tion"; "Riparian  Owners";  "Rivers";  "Tide  Waters"; 
"Water";  "Watercourses." 

STREET, 

subject  to  rules  of  suburban  highway,  810. 
see  "Highways." 

STRICT  FORECLOSURE, 
of  mortgage,  1257. 

STRICT  SETTLEMENT, 
nature,  303. 

SUBCONTRACTORS, 

under  mechanic's  lien  law,  1298. 

SUBJACENT  SUPPORT, 

of  land,  natural  right,  690. 

easement  affecting,  690. 
of  upper  floor  of  building,  691. 

SUBLEASE, 

distinguished  from  assignment,  114. 

right  to  make,  effect  of  stipulation,  107,  113. 

does  not  create  privity  with  lessor,  113,  119. 

SUBMERSION  OF  LAND, 
see  "Flowage." 

SUBROGATION, 

of  person  paying  mortgage,  1246. 

purchaser  at  invalid  sale,  1249,  1265. 
insurer,  to  place  of  mortgagee,  1210. 

SUBSTITUTION, 
of  trustee,  244. 

SUBTENANCY, 
see  "Sublease." 


INDEX.  1573 


[references    ABE   TO   PAGES.] 

SUBTERRANEAN  WATERS, 
rights  as  to,  666,  668. 

SUFFERANCE,   TENANCY   BY, 

nature,  149. 

mere  naked  possession,  150. 
landlord's  option  as  to  tenant,  151. 
notice  to  terminate,  154. 
forcible  expulsion  of  tenant,  156. 

SUMMARY  PROCEEDING, 

by  landlord  to  obtain  possession,  156,  182. 

SUPPLIES, 

lien  on  crops  for,  1322. 

SUPPORT, 

lateral,  of  land,  668,  670,  690. 

of  building,  670,  690,  712,  1031. 
subjacent,  of  land,  690. 

of  upper  floor  of  building,  691. 
prescriptive  right,  1031. 
implied  grant  on  sale  of  adjoining  buildings,  712. 

see  "Lateral  Support";  "Subjacent  Support." 

SURETY, 

mortgage  to  indemnify,  1188. 

SURFACE, 

of  land,  rights  above  and  below,  515. 
waters,  drainage  on  adjoining  land,  662,  689. 

common  and  civil  law  rules,  662. 

prescriptive  rights,  1030. 

SURRENDER, 

nature  and  purpose,  109,  131,  852. 
express,  necessity  of  writing,  853. 
by  acceptance  of  new  lease,  854. 

abandonment  of  premises,  854. 

lease  to  third  person,  856. 
effect  on  remainder,  297. 

rent,  132. 

see  "Merger." 


1574  INDEX. 

[EEFEEENCES   ABE  TO   PAGES.] 

SURVEY, 

by  government,  description  by  reference  to, 

SURVIVORSHIP, 

in  joint  tenancy,  371. 

tenancy  bj^  entireties,  379. 
joint  trustees,  244,  376,  623.  624. 
joint  executors,  623. 
joint  mortgagees,  1264. 

SURVIVORS, 

devise  to,  construction,  335. 

SWAMP  LANDS, 

grant  to  state,  836. 


TACKING, 

of  adverse  possessions,  1000. 

mortgages,  1242. 

unsecured  claim  to  mortgage,  1242. 
for  purpose  of  prescription,  1022. 

TAIL,  ESTATE, 

see  "Estate  in  Fee  Tail." 

TALTARUM'S  CASE, 

recovery  as  bar  of  estate  tail,  66. 

TAXES, 

payment  by  life  tenant,  75. 

mortgagee,  1206. 
nonpayment,  foreclosure  of  mortgage,  1250. 
sale  for,  character  of  title  acquired,  1063. 

right  of  redemption,  1065. 

deed  to  purchaser,  1065. 

prior  judgment  for  taxes,  1066. 

curative  acts,  1067. 

purchase  by  cotenant,  399. 
mortgagee,  1198. 
lien  of,  1319. 
forfeiture  for,  1066. 


INDEX.  1575 


[references  are  to  pages.] 

TELEGRAPH  POLES, 

in  highway,  as  additional  servitude,  812. 

TENANCY  AT  WILL, 

nature  and  creation,  137,  138. 
at  will  of  lessee  only,  137. 
under  oral  lease  for  years,  87. 
possession  under  contract  of  sale,  139. 
no  reversion  incident  to,  140. 
waste  by  tenant,  140,  560,  571,  574. 
tenant's  right  to  emblements,  143,  523. 

remove  goods,  143. 

fixtures,  548. 
termination  by  notice,  141. 

by  acts  inconsistent  with  tenancy,  141. 

by  death,  141. 

statute  requiring  notice,  142. 

TENANCY  BY  ENTIRETIES, 

nature,  379. 

survivorship,  380. 

statutory  modifications,  381. 

termination,  383. 

no  right  of  partition,  383,  408. 

TENANCY  BY  SUFFERANCE, 

nature,  149. 

mere  naked  possession,  150. 
landlord's  option  as  to  tenant,  151. 
notice  to  terminate,  154. 
forcible  expulsion  of  tenant,  156. 

TENANCY  FROM  MONTH  TO  MONTH, 

nature,  145. 

notice  to  terminate,  148. 

see  "Tenancy  from  Year  to  Year." 

TENANCY  FROM  YEAR  TO  YEAR, 

creation,  144. 

by  oral  lease  for  years,  87,  148. 
assignment,  147. 

tenant's  liability  for  waste,  147,  571. 
termination  by  notice,  147. 


1576  INDEX. 

[references  are  to  pages. J 
TENANCY  IN  COMMON, 

nature,  376. 
in  trees,  531. 

crops,  535. 

party  wall,  692. 
creation,  377. 
termination,  378,  379. 
between  coheirs,  378,  379. 
contract  or  conveyance  by  cotenant,  393. 
adverse  possession  by  cotenant,  389. 
ouster  of  cotenant,  389,  392. 
accounting  by  cotenant,  391. 
improvements  by  cotenant,  396. 
repairs  by  cotenant,  397. 
payment  of  incumbrance  by  cotenant,  398. 
adverse  title  acquired  by  cotenant,  398. 
waste  by  cotenant,  579. 
contribution  between  eotenants,  396. 
partition,  403,  405. 
action  by  eotenants,  401. 
dower,  widow  of  cotenant,  440. 
curtesy,  husband  of  cotenant,  494. 

TENDER, 

of  amount  of  mortgage,  effect,  1236. 

TENEMENT, 

meaning  of  term,  6. 

TENURE, 

feudal,  17. 

in  United  States,  3. 

incident  to  reversion,  85,  271. 

effect  of  Statute  of  Quia  Emptores,  28. 

TERM  FOR  YEARS, 

see  "Estate  for  Years." 

TESTAMENTARY  CAPACITY, 

married  women,  1147. 

infants,  1152. 

persons  mentally  defective,  1156. 


INDEX.  1577 

[references  are  to  pages.] 
TEXAS, 

original  title  to  lands  in,  842. 

THELLUSON  ACT, 

concerning  accumulations,  364. 

THREAD  OF  STREAM, 

as  boundary,  595,  890. 
dividing  new-made  island,  1038. 
effect  of  change  in  location,  1035. 

TICKET, 

as  constituting  license,  679. 

TIDE  WATERS, 

land  under,  ownership,  591. 
shore,  what  constitutes,  591. 

grant  by  state,  592. 

access  to,  597. 

use  of,  593. 

erections  and  reclamations  on,  593. 

seaweed  on,  593. 

public  rights  on,  592,  825,  826. 
boundaries  on,  892. 

see     "Littoral     Rights";      "Rivers";      "Sea";      "Streams"; 
"Shore";  "Water." 

TIMBER, 

tenant's  right  to  cut,  563,  564. 

estovers,  566. 
on  mortgaged  land,  waste,  1211. 
severed  by  wind  or  accident,  579. 
right  to  float  on  stream,  827. 

see  "Trees." 

TIME, 

of  payment  of  rent,  779. 

performance  of  condition,  173. 

TITHES, 

nature,  8. 


1578  INDEX. 

[eefeeences  are  to  pages.] 

TITLE, 

original  title  from  government,  829. 
tenant's  estoppel  to  deny,  121,  140. 
chain  of,  appearing  on  records,  1079. 

TITLE  DEEDS, 

deposit  as  security,  1284. 

TITLE,   REGISTRATION  OP, 

see  "Registration  of  Title." 

TORRENS  SYSTEM, 

see  "Registration  of  Title." 

TORTIOUS  CONVEYANCE, 

at  common  law,  effect,  35,  295,  848. 

TOWNSHIP, 

under  government  survey,  884. 

TOWNSITES, 

on  public  lands,  836. 

TRADE  FIXTURES, 

tenant's  rights  as  to,  548. 

TRANSFER, 

of  rights  in  land,  829. 

rights  and  liabilities  as  to  rent,  780,  785. 

pre-emption  right,  834. 

executory  interests,  341. 

remainders,  305. 

reversion.  111,  272. 

trustee's  title,  242. 

cestui  que  trust's  interest,  242. 

right  of  entry  for  breach  of  condition,  183. 

widow's  homestead,  508. 

mortgaged  land,  1214,  1216,  1221. 

mortgage,  1225,  1227. 

benefit  and  burden  of  covenants,  115,  749,  751,  752. 

restrictions  on  freedom  of,  1108. 

see,  also,  "Alienation";  "Assignment";  "Conveyances",' 
"Lease";  "Mortgages";  "Personal  Capacity";  "Re- 
straints on  Alienation." 


INDEX.  1579 

[BEFEBENCES   ABE  TO   PAGES.] 

TREATIES, 

ceding  territory  to  United  States,  831. 
conferring  rights  on  aliens,  1160. 

TREES, 

as  fructus  naturales,  522. 
pass  on  conveyance  of  land,  526. 
sale  while  growing,  528. 
exception  from  conveyance,  529. 
estates  in,  529. 
oral  sale  as  license,  683. 
waste  in,  563. 
estovers,  566. 
tenant's  rights,  563,  566. 
succession  on  owner's  death,  525. 
on  or  near  boundary  line,  531. 
branches  projecting  over  boundary,  nuisance,  532. 
see  "Timber";   "Vegetable  Products." 

TRESPASS, 

by  cattle,  on  unfenced  land,  588. 

tenant  at  will,  574. 
action  of,  by  cotenants,  401. 

by  mortgagee,  1212. 

for  waste  by  tenant,  574,  576. 

TRUSTEE, 

is  legal  owner  of  the  land,  219. 

who  may  be,  226. 

duties  and  powers,  239. 

liability  for  negligence,  241. 

compensation,  240. 

appointment  and  substitution,  244. 

removal,  245. 

death,  242,  245. 

joint  trustees,  exercise  of  powers,  241,  244,  245,  622. 

death  of  joint  trustee,  241,  376,  624. 
transfer  of  legal  title,  242. 

effect  on  power  of  sale,  620. 
substituted  trustee,  exercise  of  express  power,  621. 
powers  of  sale  and  leasing,  609,  612,  622. 
limitation  of  fee  simple  to,  47. 
possession  not  adverse  to  beneficiary,  1009. 


1580  INDEX. 

[befeeences  are  to  pages.] 
TRUSTEE— Cont'd. 

to  preserve  contingent  remainder,  298. 
in  bankruptcy,  title  to  land,  1062. 

as  assignee  of  lease,  110. 
under  deed  of  trust  to  secure  debt,  1274. 
see  "Trusts." 

TRUSTS, 

nature,  217. 

relationship  to  uses,  217,  218. 
distinguished  from  condition,  161. 
recognized  in  equity  only,  218. 
rights  not  strictly  proprietary,  219. 
express,  221. 

restricted  in  New  York,  236. 
implied,  221,  233. 
resulting,  227. 

to  grantor,  227. 

heirs  of  testator,  228. 
person  paying  price,  229. 
constructive,  arising  from  fraud,  233. 
active  and  passive,  235. 
simple,  236. 

bare,  naked,  or  dry,  236. 
executed  and  executory,  237,  312. 
powers  in  trust,  611,  620,  645. 
for  conversion,  253. 

investment,  conversion,  254. 

charities,  248. 

support,  223. 
arising  on  sale  of  land,  264. 
spendthrift,  1138,  1141. 
for  sole  and  separate  use  of  wife,  413. 
actions  by  cestui  que  trust,  219. 

against  cestui  que  trust,  212,  220,  248,  413,  1138,  1141. 
declarations  of.  221. 

consideration  unnecessary,  223. 

written  evidence  necessary,  223. 

precatory  words.  222. 
perpetual  trust,  250,  1139. 
rule  against  perpetuities  applicable,  355. 
restrictions  on  rights  of  alienation,  246,  1138,  1140,  1142. 
liability  of  fund  for  debts,  1138. 
sale  by  trustee,  application  of  purchase  money,  243. 


INDEX.  1581 

[references  are  to  pages.] 


TRUSTS— Cont'd. 


transfer  by  trustee,  242. 

cestui  que  trust,  241. 
dower  in  trust  estate,  432. 
curtesy  in  trust  estate,  492,  496. 
termination,  246. 

by  convej^ance  to  beneficiary,  246. 

merger,  246. 

fulfillment  of  purpose,  247. 
not  revocable,  248. 

see  "Equitable  Estates  and  Interests";  "Trustee. 

TURBARY, 

common  of,  745. 

TURPENTINE, 

as  fructus  industriales,  522. 

TURNPIKE, 

nature,  820. 

U. 

UNDERGROUND  WATERS, 

percolating  water,  natural  rights,  666. 

easements,  689. 

prescription,  1030. 
running  in  watercourse,  666. 

UNDERLETTING, 

see  "Sublease." 

UNDUE  INFLUENCE, 

in  obtaining  conveyance,  879. 
will,  952. 

UNITY, 

of  equitable  and  legal  title,  246. 
rent  and  land,  788. 
easement  and  ownership,  734. 
mortgage  and  ownership,  1250. 

see  "Extinguishment";   "Merger." 


1582  INDEX. 

[references  are  to  pages.] 

UNITED  STATES, 

acquisition  of  territory,  829. 
grant  of  public  land,  832. 
mineral  rights,  836. 

see  "Public  Lands." 

USAGE, 

see  "Custom." 

USE  AND  OCCUPATION, 
action  for,  798. 

USE  OF  LAND, 

see  "Easements";   "Rights  of  User";  "Waste. 

USES, 

origin,  197. 

jurisdiction  assumed  by  chancery,  198. 

characteristics,  199. 

as  basis  of  trusts,  217. 

creation,  201. 

resulting  uses,  202,  208. 

implication  on  sale  of  land,  202. 

persons  bound  by  the  use,  203. 

future  uses,  210,  318. 

statute  of  uses,  203. 

execution  of  use  by,  204,  205. 

uses  not  executed  by,  210,  217. 
active,  211. 

for  separate  use  of  married  woman,  212. 
in  chattel  interests,  213. 
upon  a  use,  214,  217. 
to  legal  grantee,  214,  217. 
springing  and  shifting,  319. 

USURY, 

in  mortgage,  1192. 

V. 

VACATION, 

of  highway,  817. 


INDEX.  1583 

[references  are  to  pages.] 
VALUE.  PURCHASER  FOR, 

rights  as  against  prior  purchaser,  1074,  1093. 
what  constitutes  value,  1093. 
antecedent  debt,  1093. 

see  "Bona  Fide  Purchaser";  "Notice";  "Record." 

VALUATION, 

of  dower  interest,  475. 

VAPORS, 

noxious,  as  nuisance,  652. 

VEGETABLE  PRODUCTS, 

fructus  industriales,  521. 

fructus  naturales,  522. 

emblements,  tenant's  right  to,  523. 

succession  on  death  of  owner,  525. 

passing  on  sale  or  conveyance  of  land,  526,  527. 

exception  of,  in  conveyance,  526,  529. 

liability  for  debts,  527. 

severance  from  land,  528. 

sale  separate  from  land,  528,  529. 

formal  requisites,  530. 
border  trees,  531. 

see  "Crops";   "Trees." 

VENDOR  AND  PURCHASER, 

see  "Bona  Fide  Purchaser";  "Contract  of  Sale";  "Considera- 
tion"; "Conveyances";  "Purchase  Money";  "Purchasers"; 
"Sale";  "Vendor's  Lien." 

VENDOR'S  LIEN, 

arising  by  implication,  1287. 

persons  affected  by,  425,  1289. 

transfer  of,  1290. 

waiver,  1291. 

express  reservation,  1292. 

before  conveyance,  1293. 

VESTED, 

meaning  of  term,  282. 

construction  in  favor  of  vesting,  166,  285,  289,  333. 


1584  INDEX. 

[references  are  to  pages.] 

VESTED  REMAINDERS, 

nature  and  incidents,  282,  289. 
acceleration,  304. 
transfer,  305. 

VIEW, 

no  natural  right  to,  651.  ' 

VOLUNTARY  CONVEYANCES,  ' 

no  resulting  trust  upon,  228. 
validity  against  creditors,  1111. 
validity  against  subsequent  purchaser,  1115. 
grantee  under,  not  protected  by  recording  law,  1093. 
voluntary  declaration  of  trust,  223. 
see  "Consideration." 

w. 

WAIVER, 

of  condition,  175. 

breach  of  condition,  177. 
vendor's  lien,  1291. 
mechanic's  lien,  1304. 

WALLS, 

see  "Party  Walls." 

WARDSHIP, 

under  feudal  system,  25. 

WARRANT, 

for  entry  on  public  land,  840. 

WARRANTY, 

at  common  law,  900. 

covenants  for,  908. 

implication  on  partition,  404. 

of  condition  of  leased  premises,  99. 

see  "Quiet  Enjoyment,  Covenants  for." 


INDEX.  1585 

[BEFEBENOES   ABE  TO  PAGES.] 

WASTE, 

by  tenant  in  fee  simple,  559. 

tenant  in  fee  tail,  559. 
for  life,  73,  74. 
for  years,  100,  559. 
at  will,  140. 

mortgagor,  1211. 

mortgagee,  1213. 

cotenant,  579. 
equitable,  559,  568. 
permissive,  74,  570. 

tenant  without  impeachment  of,  569,  570. 
actual  injury  necessary,  560. 
custom  of  locality  controlling,  561. 
as  to  earth  and  minerals,  561. 
opening  new  mines,  561. 
trees  and  timber,  563,  565. 
mode  of  cultivation,  566. 
injuries  to  fixtures,  567. 
beneficial  alterations  of  building,  567,  568. 
accidental  fire,  572. 
nonpayment  of  taxes,  573. 
remedies,  action  of  waste,  574.  , 

action  on  the  case,  574,  575. 

injunction,  577,  580,  1211. 

damages,  575. 

forfeiture,  74,  575,  1052. 

accounting,  578. 
right  to  proceeds,  578. 

WATER, 

natural  rights  as  to,  655,  666. 

easements  as  to,  687,  688. 

riparian  owner,  appropriation  by,  656,  661,  688. 

pollution  by,  658,  688. 

obstruction  by,  659,  688. 
percolating,  diversion  and  appropriation,  666,  689. 

pollution,  667. 
underground  stream,  668. 
surface,  drainage  on  lower  tenement,  663,  689. 

obstruction  on  lower  tenement,  663. 

appropriation,  665. 

pollution,  665. 
artificial  collection,  accidental  escape,  666. 
Real  Prop.— 100. 


1580  INDEX. 

[references  are  to  pages.] 
WATER— Cont'd. 

running  in  natural  stream,  riparian  rights,  655. 

acquired  rights,  688. 

prescriptive  rights,  1028,  1029. 
land  under  tide  water,  ownership,  591. 

navigable  water,  591,  593. 

non-navigable  stream,  595. 

lakes  and  ponds.  595. 
land  under  water,  designation,  883. 
as  boundary  of  land  conveyed,  890. 
action  of,  upon  land,  effect,  1034. 
right  to  take  from  another's  land,  740. 

see,  also,  "Accretion";  "Banks";  "Description";  "Flowage"; 
"Ice";  "Littoral  Rights";  "Navigation";  "Percolating  Wa- 
ters"; "Surface  Waters";  "Rivers";  "Sea";  "Streams"; 
"Shore";   "Watercourse." 

WATERCOURSE, 

natural  riparian  rights,  655. 

acquired  rights,  687. 

land  under,  ownership,  593,  595. 

underground,  668. 

artificial,  689. 

as  floatable  stream,  827. 

as  boundary  of  land  conveyed,  890. 

change  in  location,  effect,  1034. 

see    "Accretion";    "Banks";     "Boundaries";     "Description"; 

"Flowage";      "Ice";      "Littoral     Rights";      "Navigation"; 

"Rivers";   "Surface  Waters";   "Streams";  "Water." 


WAY, 


rights  of,  696. 
public  or  private,  696. 
general  or  limited,  720,  723. 
of  necessity,  713,  721,  732. 
implied  grant  or  reservation,  708. 
prescription  for,  722,  724,  1028. 
exercise  of  rights,  719. 
rights  fixed  by  grant,  720,  723. 
prescriptive  user,  722,  724. 
limited  to  service  of  dominant  tenement,  719. 
as  apparent  and  continuous  easement,  708. 
construction  and  repair  of  road  for,  725. 
rights  of  owner  of  servient  tenement,  728. 


INDEX.  1587 

[references  are  to  pages.] 

WAY— Cont'd. 

obstruction,  730,  731. 

extinction,  change  in  dominant  tenement,  733. 

of  way  of  necessity,  732. 
as  boundary  of  land  conveyed,  893. 

see  "Boundaries";  "Easements";  "Highways." 

WELL, 

conveyance  of,  construction,  883. 

WILLS, 

land  not  devisable  at  common  law,  941. 

uses  devisable.  941. 

statute  of  wills,  942. 

devise  of  fee  simple,  words  of  limitation,  49. 

fee  tail,  words  of  limitation,  58. 

remainder,  305,  307. 

executory  interest,  342. 

after-acquired  property,  942. 
residuary  devise,  943,  955. 
devise  in  lieu  of  dower,  453. 
declaring  trust,  225. 
trust  for  conversion  in,  254. 
charging  debts  or  legacies  on  land,  1280. 
executory  devise,  323. 
devise  by  way  of  remainder,  326. 
real  property  passes  directly  to  devisee,  943. 
omission  of  child,  effect,  966. 
signature  by  testator,  944. 
acknowledgment,  946. 
publication,  946. 
attestation,  950. 
attesting  witness,  947. 
subscription  by  witnesses,  950. 
holographic,  951. 
nuncupative,  951. 

capacity  of  testator,  1147,  1152,  1156. 
undue  influence,  952. 
revocation,  956. 
revival  of  revoked  will,  967. 
lost  will,  presumption  of  revocation,  959. 
republication,  969. 
lapsed  and  void  devises,  953. 


1588  INDEX. 

[befebences  are  to  pages.] 

WILLS— Cont'd. 

death  of  beneficiary,  953. 
execution  of  power  by,  626,  629. 

see    "Devise";     "Executory    Devise";     "Revocation";    "Wit- 
nesses." 

WHARF, 

dedication  of  land  for,  972. 
erection  by  riparian  owner,  598. 


WIDOW, 


dower,  417. 

quarantine,  471. 

liomestead  right,  506. 

statutory  share,  485,  985. 

allowance  to,  lien  of,  1323. 

devise  during  widowhood,  171,  191. 

see  "Dower";   "Husband  and  Wife";   "Marriage";   "Married 
Women." 

WIFE, 

purchase  in  name  of,  232. 

see  "Curtesy";  "Dower";  "Husband  and  Wife";  "Marriage"; 
"Separate  Estate";   "Widow." 

WILD'S  CASE, 
rule  in,  59. 

WILD  LANDS, 

dower  in,  426. 
curtesy  in,  489. 

WINDOWS, 

overlooking  another's  land,  651. 
right  to  air  through,  655,  687. 
freedom  from  obstruction,  687. 
prescriptive  rights,  1031. 
in  party  wall,  728. 

see  "Air";  "Light." 


INDEX.  1589 

[REFEBENCES    ABE    TO    PAGES.] 


WITNESSES, 


to  conveyance,  necessity,  923. 
to  will,  necessity,  947. 

competency,  947. 

testamentary  provision  for,  949. 

signatures  of,  950. 

WOOD, 

see  "Timber";   "Trees";   "Waste." 

WRIT  OF  ATTACHMENT, 
see  "Attachment." 

WRIT  OF  ENTRY, 

foreclosure  of  mortgage  by,  1259. 

WRIT  OF  EXECUTION, 
see  "Execution." 

Y. 

YEAR  TO  YEAR, 

see  "Estate  from  Year  to  Year." 


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